Case of the Week: Does Facebook understand German?

OLG München 2The question whether Facebook understands German came before the Court of Appeals (Oberlandesgericht) München in the context of Article 8 of the European Service Regulation. Pursuant to this provision, the addressee of a document

“may refuse to accept the document to be served at the time of service or by returning the document to the receiving agency within one week if it is not written in, or accompanied by a translation into, either of the following languages: (a) a language which the addressee understands; or (b) the official language of the Member State addressed or, if there are several official languages in that Member State, the official language or one of the official languages of the place where service is to be effected.”

When German language court documents are to be served on Facebook in Ireland, it obviously depends on the construction of “a language which the addressee understands” whether Facebook is entitled to refuse service. With Facebook’s Irish entity, through which the European business is conducted, being increasingly a party to proceedings in Germany about obligations to take down or reinstate content on its platform, a body of case law has grown, triggered by Facebook’s practice to refuse to accept German language documents.

We had covered one of the earlier cases on this blog back in July 2017. In that case, the Local Court (Amtsgericht) Berlin-Mitte held that Facebook understood German. Given that Facebook had in excess of 20,000,000 German language customers, the court thought it was entitled to draw the inference that Facebook as an organisation had sufficient German language capacity to deal with this dispute. In addition, the court relied were the fact that Facebook provided its standard terms and conditions and other standard documents in the German language.

Other courts have reached the same conclusion, such as the District Court (Landgericht) Offenburg in September 2018 (discussed in detail in zpoblog.de) or the Court of Appeals (Oberlandesgericht) Köln) in May 2019. These cases notwithstanding, Facebook apparently continues to take the stand that the relevant people on its organization for the purposes of establishing its language capability are the members of the legal department and they do not speak German.

In the Munich case, the first instance court, the District Court (Landgericht) Kempten had decided that based on the facts before it, it could not determine with sufficient certainty that Facebook spoke German. The Munich Court of Appeals reversed this decision and confirmed the interpretation of Article 8 EU Service Regulation adopted by the courts referred to above. The order sets out in detail the relevant test, and then applies it to Facebook as follows:

“On the basis of the standard of review set out […] above, respondent  cannot rely on the fact that no member of its legal department has the language skills necessary to fully understand, without the assistance of an external adviser, a German-language complaint, court order or court communication or to actively defend itself in German. Against the background of the above-mentioned facts presented by applicant – which are undisputed regarding the number of Facebook customers existing in Germany, the form of contracts and the language design of the homepage – this can only be understood as meaning that the corresponding language skills (only) are not available to the employees of the (resident) respondent’s employees in Ireland.

On the basis of the overall picture outlined above, the Court of Appeals is convinced that there are employees with the appropriate language skills available to support German customers – possibly through another company of the Facebook Group. It is inconceivable for the Court of Appeals that such resources could not also be used by respondent in its capacity as the contractual partner of these customers. Especially, it can be assumed that with a number of 31 million Facebook customers domiciled in Germany, legal disputes before German courts will occur in an order of magnitude that makes it seem obvious for economic reasons to employ suitably qualified German-speaking employees.

The fact that German-speaking lawyers are available to deal with the legal issues arising in connection with the contracts concluded with Facebook users resident in Germany also results from the Network Enforcement Act (Netzwerkdurchsetzungsgesetz; NetzDG) Transparency Report of 27 August 2018 referred to by applicant. Since its content has not been disputed by respondent and respondent undisputedly is the contractual partner of Facebook users resident in Germany, the Court of Appeals is of the opinion that this allows the conclusion that the lawyers designated therein are (at least also) working for respondent.”

The Munich order, in conjunction with the other decisions so far, establishes what German lawyers love to refer to as “prevailing jurisprudence” (herrschende Rechtsprechung) or “prevailing opinion” (herrschende Meinung): Facebook does understand German.

The next in line whose German language capabilities are going to be assessed by a court, might be Uber. According to press reports, a preliminary injunction (einstweilige Verfügung) issued in favour of a taxi drivers’ cooperative against Uber could not yet be served upon Uber’s subsidiary in the Netherlands for lack of a German translation.

There is a fairly obvious legislative solution to the service issue: The Network Enforcement Act contains a duty for social networks to appoint a domestic service agent. However, this obligation exists only for proceedings under the Network Enforcement Act. The obligation to appoint a domestic service agent could both be widened beyond proceedings under that Act, and to cover not only social networks, but also sharing platforms.

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Court of Appeals (Oberlandesgericht) München, Order (Beschluss) dated14 October 2019; file no. 14 W 1170/19.

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