Liability for misuse of Facebook account?

Is the holder of a Facebook account liable if a third party misuses his membership account and insults other Facebook users in a manner that violates their personality rights? The Higher Regional Court (OLG) Frankfurt a.M. had to decide this question.

The Facebook account of an organiser of commercial events was misused by an unknown third party in such a way that another Facebook user was directly insulted by means of postings. In the concrete case, the user with a Persian-Islamic background was referred to as a homosexual and, furthermore, the performance of sexual acts on the mother of the user was also suggested.

The user addressed by the posting felt violated in his personality rights and sued the organiser and holder of the Facebook account for an injunction.

Decision of the court

The Higher Regional Court (OLG) Frankfurt am Main decided by Judgment of 21.07.2016 (Az. 16 U 233/15) that the organiser is liable for the violation of the personality rights of a third party via his Facebook account.

In the opinion of the panel, the question of the liability of the holder of a Facebook account in the event of a rights-infringing use by a third party is to be assessed according to the principles established by the Federal Court of Justice (BGH) in the so-called "Halzband" decision for the liability of the private holder of an eBay membership account in the event of its misuse by a third party.

According to this, the holder of an eBay membership account who has not sufficiently secured his access data against unauthorised access must allow himself to be treated as if he himself had committed the violation.

The Federal Court of Justice (BGH) saw the reason for the liability of the person who did not keep his access data under lock and key in the danger created by him that uncertainties could arise in traffic as to which person had acted under the relevant eBay membership account.

The Higher Regional Court (OLG) Frankfurt a.M. was also of the opinion that there were no differences between an eBay account and a Facebook account that would require different treatment. The Facebook account was also assigned to a specific user. In particular, the requirements for the duty of care imposed on its holder in the terms and conditions were almost identical to those at eBay.

Conclusion

The holder of a social media account must sufficiently secure his membership account against unauthorised access. In particular, he must keep his access data under lock and key. Otherwise, he is liable for violations by third parties via his account, as in this case for the violation of personality rights by a third party.