KARLSRUHE/HAMBURG. The obligation to give one’s real name should stop hate and bullying in social networks. But is the regulation legal?? Germany’s highest civil court judges have now ruled on this.
By Marco Krefting
Users of social networks such as Facebook were allowed to use pseudonyms for their accounts years ago. The so-called plain-name obligation to use the correct name is invalid for old cases, the Federal Court of Justice (BGH) ruled in Karlsruhe on Thursday. The background for the temporal distinction is a change in the law. A plaintiff and a plaintiff got with the judgement in last instance right, after before still Facebook had won at the higher regional court Munich.
Germany’s top civil judges deem it sufficient for people to register with their clear names. The presiding judge of the third civil senate, Ulrich Herrmann, spoke of an internal relationship. In the external relationship – for example, when posting articles, commenting or joining groups on the portal – it is reasonable for Facebook that this is done under a pseudonym.
BGH ruling: Facebook must partly allow pseudonyms
The background to the differing views is a new legal situation: the German Telemedia Act obligated providers to enable the use of their services "anonymously or under a pseudonym, insofar as this is technically possible and reasonable". The old EU law did not stand in the way. But since May 2018, a new data protection law (General Data Protection Regulation) has been in force in the European Union, which explicitly contains no such provision.
Facebook posts: the date of profile registration is decisive
The Munich Higher Regional Court had argued that Germany had tried in vain at the European level to negotiate a right to pseudonymous use into the EU regulation. The German paragraph is now to be interpreted in the sense of Union law.
But the BGH judges have now ruled on the cases under the old law, because the accounts were created before the new EU rules came into force. "Therefore, the immediate reach of our decision is limited to old cases," Judge Herrmann said. The key date could be the entry into force of the General Data Protection Regulation on 25. May 2018 view, a BGH spokesman explained.
What applies to users who have registered later is unclear. How decisions will be made in the future under the new legal conditions remains to be seen. Under certain circumstances, the European Court of Justice may also have to deal with the issue on a higher level.
Because of Facebook headquarters: Hamburg data protection commissioner responsible
A spokeswoman for Facebook’s parent company Meta said after the announcement, "We note today’s decision, which is explicitly based on an outdated legal situation."Facebook, he said, is a platform where people can connect and share with each other using their real names. "The use of real names contributes to authenticity on the platform."
Thomas Fuchs, the Hamburg data protection commissioner responsible for Facebook because of the company’s headquarters, welcomed the ruling: "Even though the Telemedia Act has now been superseded and replaced by newer provisions, pseudonymous use is still correct for data protection reasons, and the principle of pseudonymization is also enshrined in the General Data Protection Regulation."
Prosecution for offensive or discriminatory statements on the net
Now, insulting or discriminatory statements on the net are not a trivial offense and have come under increased criticism, not least in the wake of the Corona pandemic. Nevertheless, Christof Stein, press spokesman for the Federal Data Protection Commissioner, told the Deutsche Presse-Agentur: "Anonymity on the net is a high good that should not be sacrificed so easily."
Fight against hate, agitation and bullying on the Internet
It also does not stand in the way of the fight against hatred, agitation and bullying. On the one hand one could find also with pseudonyms the humans behind it. On the other hand, such statements would come from many accounts that are not anonymous at all. "These are not issues of anonymity and privacy, but of more law enforcement," Stein said. However, the extent to which Facebook could cooperate better with law enforcement agencies, for example within the framework of the Network Enforcement Act, is a different question in the view of Hamburg’s data protection commissioner Fuchs, and one that should not be confused with the obligation to use plain names. (dpa)