Back in December 2019, the headline to my post on that very topic still had a question mark: “Does Facebook speak German?” I had reported on what appeared to be only the second decision by a German court of appeals (Oberlandesgericht) on the issue whether Facebook Ireland, the legal entity operating Facebook’s German activities, is entitled to refuse service of German-language court documents under Article 8 of the European Service Regulation.*
I concluded by saying that the Munich order contributed to what German lawyers love to refer to as “prevailing jurisprudence” (herrschende Rechtsprechung) or “prevailing opinion” (herrschende Meinung): Facebook does understand German. This recent decision of the Court of Appeals in Düsseldorf does confirm this conclusion: The headline of the court’s press release yesterday read “Facebook kann Deutsch” – Facebook does speak German. The court held in a ruling concerning a cost application that Facebook cannot insist on a translation of German documents into English.
In September 2018, a Facebook user from Düsseldorf had secured an interim injunction from the Düsseldorf District Court (Landgericht), which prohibited Facebook Ireland from blocking the applicant’s posting of a specified content on facebook.com or deleting it. The applicant arranged for this injunction to be served on Facebook in Ireland without an English translation. Facebook entered appearance through Irish lawyers and claimed that its legal department did not understand the content and needed an English translation to be able to defend itself.
In assessing the validity of service without a translation, the Düsseldorf court did apply more or less the same test that the Munich Court of Appeals had based its decision on:
“The issue whether a corporate recipient can be assumed to understand the language does not depend on the personal abilities of the members of the management board, but on the organisation of the corporate recipient as a whole. The decisive factor is whether, due to the nature and scope of business activities in a particular country, it can be assumed that the company has employees who can handle legal disputes with customers in the local language. In this respect, an overall assessment must be performed, taking into account all circumstances.”
In carrying out that assessment, the Düsseldorf court reached the conclusion that Facebook as an organisation did possess the necessary language skills. It put particular emphasis on the fact that the customer-facing legal documents were all in German:
“This shows here that defendant’s assertion (…) that none of the members of its legal department have sufficient language skills to fully understand complaints, court orders or notifications in German or to defend the company in German without the support of external counsel is purely a protective assertion (reine Schutzbehauptung) and that defendant does have sufficient knowledge of German. It is known to the court that defendant has a large number of users in Germany to whom it makes its platform available entirely in German. In addition, all documents used in the relationship between the parties, in particular the General Terms and Conditions and the Community Standards are in German.”
Even though the General Terms and Conditions did not contain an express choice of German law, the court’s analysis showed that they were clearly drafted with German statutory law in mind, in particular with regard to the limitation of liability.
I would expect this test to be applied widely, and indeed to become the prevailing jurisprudence. For a corporate litigant of the size and scope of Facebook, the conclusion reached by the Düsseldorf court may also be correct. However, I would caveat against putting too much emphasis on the fact that customer-facing legal documents are available in German. There certainly are many businesses out there that would tick this box and still not have the internal resources within their respective organizations to qualify as German-speaking.
Oberlandesgericht Düsseldorf, order (Beschluss) dated 18 December 2019, file no. I-7 W 66/19.
*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.”