Back up: can users sue platforms to reinstate deleted content?

Abstract

A private order of public communication has emerged. Today, social network services fulfill important communicative functions. A lot has been written about the failings of companies in deleting problematic content. This paper flips the question and asks under which conditions users can sue to reinstate content and under which circumstances courts have recognised 'must carry' obligations for social network services. Our analysis, an initial comparative analysis of case law on the reinstatement of user-generated content, will point to a larger issue of systemic relevance, namely the differences in treatment of states and private companies as threats to and/or guarantors of fundamental rights in the United States and in Germany. It is a contribution to the important debate on the interaction of states and platforms in governing online content.

Theory and Practice of the European Convention on Human Rights

“…81 While the governing centre-right coalition had it as part of its official political framework to 'have a critical look at how the ECtHR has expanded the reach of the ECHR through its dynamic interpretation'. 82 On the centre-left, the Social Democrats also had their think pieces attacking the Court's interpretation as lacking democratic legitimacy. 83 These political statements utilised arguments from many respected academics who had published in newspapers, popularised science formats or in Danish-language academic journals.…”

“…In Merabishvili the Grand Chamber required the Article 18 ECHR complaint to be 'a fundamental aspect of the case' to warrant separate examination. 82 This means that if the circumstances of the case clearly point to a breach of Article 18 ECHR, the Court must, in accordance with its own case law, examine this complaint separately. Only this interpretation is in conformity with the Convention.…”

“…81 In light of the forceful arguments made in this concurring opinion, it remains to be seen how the Court's jurisprudence in negligence cases will develop. Currently, there is a certain degree of uncertainty 82 due to the fact that it is not entirely clear under what circumstances civil law remedies suffice. In Nicolae Virgiliu Tănase v. Romania, the Court stated that civil remedies suffice once it has been established that death was inflicted unintentionally.…”

Protecting Democratic Elections Against Online Influence via “Fake News” and Hate Speech – The French Loi Avia and Loi No. 2018–1202, the German Network Enforcement Act and the EU’s Digital Services A...

“…81 Furthermore, German civil law courts have successfully obligated Facebook to restore deleted or blocked posts on the basis of the German Civil Law Code ('put-back'). 82 The basis for such put-back claims are the private law contracts between online intermediaries and users, including the terms and conditions, but also the right to freedom of expression. 83 While online intermediaries are not directly bound by human rights, the German constitutional doctrine of indirect third party effect or horizontal effect ('mittelbare Drittwirkung') allows for some indirect impact of human rights within private law relationships.…”

(Re)Constructions of Social Networks in Slovenian Case Law

“…24 | Censored users usually do not have legal remedies at their disposal, though this depends on the jurisdiction. While removal of content in the United States is in the hands of social network companies, German courts hold that social networks function as public communicative spaces and must respect admissible expressions of opinion: while social networks may remove more than just expression illegal under German legislation, they ought not act arbitrarily and must provide recourse procedures Kettemann and Tiedeke, 2020..…”