Report from Der Spiegel
In Brief – Germany’s Federal Court of Justice has again suspended Green Party politician Renate Künast’s lawsuit against Meta and referred what it believes are unresolved legal questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling. Künast wants Meta to identify and remove all memes featuring her photo and the fabricated statement that she suggests Germans should learn Turkish. Although Meta removes posts it is notified to remove, Künast wants Meta forced to find and remove all posts regardless of being informed. After the Frankfurt Higher Regional Court ruled that Meta was required to proactively filter content, the Federal Court of Justice suspended the case in 2025 while awaiting the results of a CJEU ruling in a similar dispute. The high court now wants the EU court to rule on how their recent digital platform decisions apply to Künast’s case, including Meta liability under the GDPR and the proper application of the hosting provider liability exemption.
Context – Legal regimes protecting platforms from being responsible for the actions of their many users have been a foundation of the digital economy. The key legal principle has been that the people that engage in harmful conduct are responsible, not the intermediary services they use. The scope of the hosting provider liability regime in Europe, and the Sec. 230 immunity regime in the US, are now under threat from court rulings that are sympathetic to arguments that algorithmic processes to direct content to users nullify a platform’s immunity from liability for third-party user conduct. In June, the EU’s Court of Justice ruled that a platform using algorithms to determine how and in what order user information is displayed cannot be classified as a passive hosting provider, and a German court recently used that ruling to determine that Meta is responsible for scam investment ads posted by third parties on its platforms. In 2023, the US Supreme Court was teed up to address basically the same question related to Sec. 230 in Gonzalez v Google, but they dispensed with the case without addressing it. A more clear circuit split has since emerged.