Deleting User Generated Content & Age Confirmation
German law is notoriously strict on limits to the enforceability of standard terms, both in B2C and B2B settings. Aside from longish statutory lists of prohibited terms, courts have broad discretion in their evaluation of clauses, with the power to strike any provision they consider puts the other side at an unreasonable disadvantage. Not surprisingly, the body of case law on such clauses is immense and continuously growing.
Two types of clauses that have recently attracted judicial scrutiny are clauses entitling a service provider to delete user-generated content at their discretion, and clauses under which users of a service confirm that they are 18 years of age or acting with the consent of their guardians.
I. Deleting User-Generated Content
Under the German Network Enforcement Act, social networks with a German user base of over two million must maintain a sophisticated set of procedures to ensure illegal content is removed from their platforms swiftly after it is reported. But even services that are not caught by these obligations must remove certain illegal content, and have an obvious interest in enforcing certain content restrictions, which are often reflected in terms and conditions or community standards.
The Higher Regional Court of Munich however recently declared unenforceable a clause entitling a social network to remove any content it believed was contrary to its community standards (decision of 24 August 2018, docket no. 18 W 1294/18).
The judges interpreted the clause as saying that it did not matter whether the content was actually contrary to the standards as long as the service provider believed it was, thereby implying and absolute discretionary power to remove content (and block user accounts). According to the court, this was unfair to users in light of the users’ constitutionally protected freedom of expression and the powerful public position of the concerned social network as a “public marketplace of ideas”.
However, freedom of expression is not without limits. If prohibited content is described in an objective manner, i.e. not entirely in the service provider’s discretion, then the service provider may delete content that violates such provisions. Various courts have validated this approach for a set of terms that prohibited “hate speech”, and clarified that service providers were free to define this category more broadly than it might be defined in statutory law. Service providers can also restrict other types of content, even if they that are not criminal or otherwise illegal.
When drafting terms, service providers should therefore exercise great care when defining prohibited content, and avoid the impression of unlimited discretionary power to delete content and block users.
II. Age Confirmation
Many online services include clauses in their terms under which users confirm they are of a certain age or are acting with the consent of their guardians. Of course, the age of a user is of great importance to a service provider, for instance in determining whether the user can validly enter into an agreement, or consent to the use of their personal data under Art. 8 GDPR.
However, under German law, many such clauses are ineffective, unenforceable, or both.
The applicable statute prohibits clauses in standard terms that shift the burden of proof to the detriment of a consumer. As a general rule, it is up to the service provider to prove that a minor has the required parental consent. This burden cannot be shifted to the customer in standard terms. Some courts have considered that a clause under which a user confirms they have full legal capacity is nevertheless valid, since a customer claiming they did not have legal capacity would have the according burden of proof under statutory law as well.
Even if the confirmation clause is technically valid, it is not particularly helpful. It would only apply if the contract was validly concluded, and in that case would not be needed. If a minor entered into the agreement without parental consent, it would not be enforceable regardless of whether it had an age confirmation clause.
Nevertheless, the clause can have beneficial effects for providers, as it may psychologically deter minors from using the service. Also, European law restricts certain types of advertising addressed to minors – in this context, an age confirmation clause can help argue that minors are not the intended target audience of a service offering.