Copyright vs. “fake news” – Deletion of user contributions from a copyright point of view

Social media platforms have long been very tolerant when it comes to dealing with so-called “fake news”. They were only obliged to delete posts that either violate the rights of third parties (especially the copyrights of third parties) or constitute a specific criminal offence according to the Network Enforcement Act (NetzDG).

In connection with the COVID-19 pandemic, a lot of misinformation was distributed via social media platforms. As a consequence, some platforms changed their terms of use, forbade corresponding contributions in this way and, in the event of a violation, threatened to delete the contributions and/or block the user accounts concerned. BUT: Is the deletion of user contributions by social media platforms compatible with German copyright law (UrhG)?

How often is the devil in the details? As one example, social media platforms have to be concrete in their terms of use about how they will react to misinformation and “fake news”. The user must be informed exactly of the circumstances in which his work can be deleted from the platform. A blanket clause does not meet the requirements of Sec. 307 (1) and (2) No. 1 German Civil Code (BGB).

Furthermore, according to Sec. 14 UrhG, the author can only forbid an “other impairment” to the extent that it is suitable to endanger his legitimate “individual or personal interests in the work”. It is therefore necessary to weigh up the author’s current interests, and interests in integrity, against the interests of the user of the work, in this case above all social media platforms.

Ideally, the conflicting interests should be reconciled. Even if the author does not have the right to have his work presented only as he sees it or wants it to be presented (BVerfG GRUR 2001, 149, 151 – Germania 3), his interest is ultimately based in the (unreserved, but not unrestricted) granted artistic freedom of Art. 5 Abs. 3 S. 1 German Constitution (GG).

In addition, if you take into account that on the one hand the user contribution is deleted – therefore the publication of the work is thwarted or the work is at least impaired – but, on the other, the effects of the publication of a “fake news” contribution on a social media platform are very manageable for this very platform, one will come to the conclusion of a disproportionate deletion. Rather, the platform would be able to clearly mark posts that contain misinformation, and so adequately protect the interests of both the author and the platform.

In the end, a deletion of user contributions through social media platforms would only be permissible under copyright law if the user waived his right to prohibit according to Sec. 14 UrhG. Such a waiver can be regulated in the terms of use, but with a view to the transparency requirement of Sec. 307 (1) BGB, it requires a detailed regulation of the conditions under which a post can be deleted from the platform.

Our article, first published in German by the Intellectual Property Magazine, explores this issue in more detail.  For more information about, or any questions related to, copyright/copyright infringement, please reach out to our team.