The Munich Higher Regional Court ruled in two rulings dated December 8th, 2020 (Ref .: 18 In 2822/19 Pre and 18 In 5493/19 Pre) decided that the real name requirement prescribed by Facebook is lawful.
In both proceedings, users sued against the blocking of their accounts by Facebook. The reason for the blocking was that, contrary to Facebook’s terms and conditions, users had used pseudonyms instead of their real names.
In the opinion of the Munich Higher Regional Court, the obligation to use the real name does not constitute a violation § 13 Abs. 6 TMG nor against the GDPR. Users are not unreasonably disadvantaged by this obligation.
After § 13 Abs. 6 TMG Service providers must enable the use of telemedia anonymously or under a pseudonym, provided that this is technically possible and reasonable. In the opinion of the Munich Higher Regional Court, the aforementioned provision is a data protection regulation. The court then finds that there is a conflict between the regulation of the § 13 Abs. 6 TMG and the GDPR exists, as the latter does not contain any comparable regulation.
In the opinion of the Munich Higher Regional Court, the existing objection is due to an interpretation of the § 13 Abs. 6 TMG to solve.
As already stated at the beginning, providers of telemedia are after § 13 Abs. 6 TMG only obliged to enable anonymous use of the services to the extent that this is reasonable. The question of reasonableness must be determined in the context of a proportionality test, in which the interest of the service provider – in this case, the obligation to use real names – must be weighed against the user’s right to informational self-determination.
The consideration to be made is in favor of Facebook. In this context, the court stated:
The interest pursued by the defendant with the obligation of users to use their real name is not limited to being able to identify users more easily if their terms of use are violated. In view of the now widespread socially harmful behavior on the Internet – cyber bullying, harassment, insults and hate speech – the defendant has a legitimate interest in already taking preventive action on its users. The Senate shares the view of the Regional Court that the obligation to use the real name is basically suitable to deter users from illegal behavior on the Internet. When using a pseudonym, the inhibition threshold after general life experience is significantly lower.
The Munich Higher Regional Court rejected the objection that despite the requirement to use real names, illegal behavior has increased massively in recent years. It cannot be concluded from this that the clear name requirement is unsuitable for realizing the preventive goals of Facebook.
According to the Munich Higher Regional Court, freedom of expression is not impaired by the obligation to use the real name. It is true that the basic right to express one’s opinion also includes an anonymous utterance or utterance made under a pseudonym. However, as part of the balancing of interests, the court takes into account that there are numerous other social networks in addition to Facebook that are not obliged to use the real name.
For the aforementioned reasons, the real name requirement does not constitute an unreasonable disadvantage for users within the meaning of the § 307 Abs. 1 S. 1 BGB but.
It remains to be seen whether the decisions of the Munich Higher Regional Court will be appealed against. If this is the case, the BGH will have to deal with the question of the legality of the real name requirement on Facebook.
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