The Federal Court of Justice (BGH) has overturned a clause in Facebook’s terms of use, according to which a user of the social network must always use the name that he also uses in everyday life. This blanket passage was ineffective, judged the III. Civil Senate on Thursday in two proceedings (Az.: III ZR 3/21 and III ZR 4/21). The provision placed the plaintiffs at an unreasonable disadvantage “contrary to the requirements of good faith” at the time it was included in the contract of use.
Since the Federal Court of Justice ruled according to the old legal situation, the decision only applies to old cases that are to be assessed according to the Telemedia Act, which was valid until November 30, 2021.
Clause on real name obligation is unclear
The clause on the real name obligation was “not clear and understandable”, the BGH explained in a statement. In addition, she deviated from “essential basic ideas” of local laws. In case of doubt, an unreasonable disadvantage is also to be assumed if essential rights or obligations arising from the nature of a contract are restricted in such a way that “the achievement of the purpose of the contract is endangered”.
The Munich Higher Regional Court (OLG) had previously seen Facebook as right and blocked the two users who had run their profiles under pseudonyms. The Federal Court of Justice partially overturned both judgments. In proceedings III ZR 3/21, he sentenced Facebook and the parent company Meta to allow the plaintiff to change his profile name to a pseudonym. The company must allow the plaintiff to use the features of his account under a pseudonym.
Providers must allow anonymous use
The Karlsruhe judges are based on paragraph 13 of the Telemedia Act (TMG), which is valid until November 30, 2021. This obligated provider to enable the use of their services “anonymously or under a pseudonym, insofar as this is technically possible and reasonable”. The Telecommunications Telemedia Data Protection Act (TTDSG), which came into force at the beginning of December, continues this requirement.
It was not reasonable for Facebook to allow the use of the network without the respective user having previously communicated his real name internally – for example during registration – according to the judgment. For the subsequent use of the services offered under a pseudonym, however, the judges affirmed the reasonableness. The clear name obligation is here “without replacement” eliminated.
In the older case III ZR 4/21, the BGH ordered Facebook to unlock the plaintiff’s blocked user account and to grant her “unlimited access” to the associated functions. The group cannot require the other party to change their profile name to their real name. The provision on the real name obligation in the relevant terms of use as of January 30, 2015 is also ineffective. The Berlin Regional Court had already worked this out in early 2018 in a class action lawsuit (Az.: 16 O 341/15).
BGH uses the EU data protection directive from 1995
In both proceedings, the BGH used the old EU data protection directive from 1995. The General Data Protection Regulation (GDPR) does not contain any express provision for the anonymous or pseudonymous use of online services. According to the Karlsruhe judges, these new requirements were not decisive because they have only been in effect since May 25, 2018. For the legal situation, however, “the time at which the respective general terms and conditions are included in the contractual relationship is important”.
The BGH judgments initially only apply to older cases. The Munich Higher Regional Court had argued that the federal government had tried in vain in the dispute over the GDPR at European level to negotiate a right to pseudonymous use into the regulation. The German paragraph for pseudonyms should therefore now be interpreted in accordance with EU law. For Meta, the BGH announcement is a setback. The group had previously shown itself to be convinced “that people take more responsibility for their statements and actions if they use their real names on Facebook”.
Most recently, in its position for the planned Digital Services Act (DSA), the EU Parliament advocated that operators of online platforms should make “reasonable efforts” to enable anonymous use and payment of online services.
Traffic light government wants to rely on login traps
The traffic light government alliance also wants to use a login trap to identify perpetrators. In particular, operators of social networks such as Facebook and Twitter should work closely with the police to identify suspects and their IP addresses as soon as they log in again. Investigators could then compare the Internet identifier with inventory data from the access provider and thus receive their name and address.
The concept comes from the network policy association D64, which is close to the SPD. He describes the approach as a targeted criminal prosecution tool to solve crimes – without placing the general public under blanket suspicion. This is intended to prevent the compulsory use of real names, which is otherwise already required in SPD circles. The coalition agreement states: “We reject general monitoring obligations, measures to scan private communication and an identification obligation. We will maintain anonymous and pseudonymous online use.”
(mack)