SKW Schwarz successful for MDR before the Federal Administrative Court

MDR may delete non-broadcast-related comments on its Facebook page.

Public broadcasters are allowed to delete non-broadcast-related user comments on their corporate pages in social media. This was decided yesterday by the Federal Administrative Court on the occasion of a lawsuit against Mitteldeutscher Rundfunk (MDR). The broadcaster was represented by SKW Schwarz.

On its Facebook page, MDR publishes posts on selected programs that users can comment on. MDR's netiquette refers to the fact that the comments must, among other things, be related to the topic of the respective broadcast. The plaintiff had posted 14 comments on Facebook without reference to the program, which MDR deleted.

According to the court, the deletion of the plaintiff's comments was an interference with his freedom of expression, which is protected by Article 5 (1) sentence 1 of the German Basic Law. However, this encroachment was justified. This is because the general laws within the meaning of Article 5 (2) of the Basic Law include, among other things, the provisions of Section 11d RStV (now Section 30 MStV) relating to the telemedia offerings of public broadcasters. The restriction of these broadcasters' offerings to broadcast-related telemedia, as well as the prohibition of forums and chats without a broadcast reference and editorial accompaniment, also extended to users' comments. MDR was thus entitled to delete posts without a broadcast reference, even without prior hearing or subsequent notification of the user.

"The Federal Administrative Court has fortunately confirmed that broadcasters who operate corporate pages on Facebook or other portals do not have to put up with users posting irrelevant and frivolous comments on their pages," said SKW Schwarz partner Martin Diesbach. "Freedom of expression ends where comments no longer have any recognizable content-related connection to the discussions on the online platform. Operators are allowed to remove such comments in implementation of their netiquette."

Representing Mitteldeutscher Rundfunk:
SKW Schwarz: Dr. Martin Diesbach (Media & Entertainment), Dr. Klaus Jankowski (Public Commercial Law)