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> Does YouTube's TOS really not contain statements giving them the ability to stop hosting any video, at any time, for any reason? The highest court in Germany

> Does YouTube's TOS really not contain statements giving them the ability to stop hosting any video, at any time, for any reason? The highest court in Germany (for civil and criminal proceedings) wrote this in one of their rulings: > Depending on the circumstances, especially if private companies - as in this case - move into a dominant position and take over the provision of the framework conditions of public communication themselves, the fundamental rights obligation of private parties can in fact be close to or even equal to a fundamental rights obligation of the state. So as long as YouTube, Twitter etc. are open to "the public", they could write "we reserve the right to remove any content for any or no reason at any time" in their TOS and it wouldn't be valid in Germany.

throwawayboise 5y ago
This is as it should be IMO. When you position yourself to be a de-facto public square, you shouldn't get to selectively operate like a private club when it suits you.
- raxxorrax 5y ago
  Don't judge too quickly. The ruling also made clear that it is judges who determine if content violates the law. It was not the case here. But it also means that platforms would have to comply with the judiciary restricting content and face fines if they don't. That wouldn't be too positive for the net and its development under certain circumstances. Double-edged sword...
  - kaba0 5y ago
    I don’t see how would it be a double-edged sword. It’s a meme, but we do in fact live in a society, with laws made mostly democratically by people (ideally) — which is the closest thing at this scale to a fair system. Why should a private company get to decide what it wants over the local laws? If it were to host child porn, should we be okay with that even though we collectively have voted to ban any form of pornography of minors?
- eli 5y ago
  Seems like Germany should simply nationalize the platform if that's what they want.
  - whbrown 5y ago
    It's not theirs to take. And anyhow, the GDR dissolved over 30 years ago, I should think their economic policies died with them.
    - eli 5y ago
      Is it theirs to force them to host content Google wishes to delete?
      - whbrown 5y ago
        It's theirs to host the videos themselves if they deem them worthy of being hosted.
        eli 5y ago
        The German government? Yeah I think they should host videos themselves if they want them to be online and google doesn’t.
      - adamdusty 5y ago
        I don't think it's unreasonable for companies with publicly available communication platforms be required to abide by laws in the countries they make those platforms available in. If youtube decided that they would host videos in germany on an invite only basis, it would be different.
        eli 5y ago
        No matter what the law?
  - zucker42 5y ago
    Do you think Germany "nationalizing" YouTube is less extreme than this ruling?
- pionar 5y ago
  Hmm, when did they do this? I actually think Germany has it backwards here. If the German government wants to provide a free-speech "safe zone", they should provide it themselves. You're encouraging government coercion of action.
  - username90 5y ago
    > If the German government wants to provide a free-speech "safe zone", they should provide it themselves. But that is what they are doing here, no? They just use Youtube as the way to provide it. Governments doesn't have to run businesses themselves, private actors are much better at running the day to day stuff usually. Similarly if you own a huge amount of land and build a city there and let lots of people move in, don't get surprised when the government seizes your square and roads and make them public, or at least force you to let people move there as if they were public roads.
    - travismark 5y ago
      but the government isn't paying YouTube to host videos. eminent domain and related takings require compensation
      - eqvinox 5y ago
        This isn't eminent domain, the government didn't decide to build a video service that they need to evict Youtube for. Apparently Youtube decided to remove a video without proper support in their terms of service, so they're being judged to be in violation of their contract with the user. Whether or not Youtube should have a clause in their terms allowing them to remove arbitrary content is a different question, and yet another is whether they should be allowed to have such a clause.
      - imwillofficial 5y ago
        Perhaps in your jurisdiction, but in this hypothetical example, I guess not.
      - mikem170 5y ago
- deminature 5y ago
  Isn't this punishing Youtube for their own success at achieving a dominant market position? They didn't position themselves as the de-facto public square so much as became one due to lack of competition.
  - xdennis 5y ago
    > Isn't this punishing Youtube for their own success at achieving a dominant market position? Yes, and that's a good thing because it encourages competition. No market should have a player with such a dominant position.
  - wizzwizz4 5y ago
    YouTube's very “success” is “rewarding”. But to me, it's not a punishment. It's a natural consequence of YouTube's dominant position: they have to start acting like it.
  - dnate 5y ago
    Sure, but it's also the job of the government to oversee the power corporations have and how they wield it. No single corporation should be allowed to actively shape and censor information just because they are successful / a monopoly.
    - deleted 5y ago
      [deleted]
  - tjs8rj 5y ago
    Yes. Not so much a punishment as a responsibility that comes with the position. The state isn’t special: if you have deep and fundamental influence over the lives of others, you are burdened with certain responsibilities. Who cares if youtube is a private company, and it’s not liking forcing them to respect rights is hurting their pocket book: if you have that much power over people, you are held accountable. This idea that private companies earn special privileges in this regard because they were started by individuals needs to die.
    - 5y ago
- drdeca 5y ago
  I think that, at least if you replace "shouldn't get to" with "shouldn't", then for some values of "position yourself to be", this would be right. I feel like it is largely a question of what expectations you work to produce among users and potential users. If people are actively aware of the organization saying "we can remove videos on a whim if we want to, and we very well might do so", and especially if they are generally known to occasionally do that in practice, and this isn't a surprise to any users with a reasonable level of awareness, then I think that's probably fine. But if the impression they give to a typical reasonable person is that they are "a platform for almost everyone that behaves according to fixed rules, where you can be reasonably assured that if you follow the stated rules your content will stay available, as much as we are able to accomplish this", but then they go around removing videos on a whim / because they have a grudge against someone / because someone paid them to / whatever , then that's not good, because they aren't being honest about the service they provide. Whether the govt has any place making an organization who is misbehaving in that particular way stop, I'm, not sure one way or the other.
- wesleywt 5y ago
  They are not a public square. They do have the right to censor you. Especially, if you spread misinformation and hatred.
  - defen 5y ago
    Isn't the whole point of this ruling that they don't have that right, at least in Germany?
- CryptoPunk 5y ago
  If the people want a free-speech-respecting public square, they should petition their state to create one that is compelling enough to become the choice of the majority, not let private citizens do the hard work of creating an effective square, and then use force to commandeer it.
  - 4h53n 5y ago
    Why? We could let the free market come up with competing solutions and regulate where necessary.
    - CryptoPunk 5y ago
      1. Because it's a violation of other people's rights to control their own private property. It's predicated on using the threat of imprisonment against people acting peacefully, which infringes upon human rights. 2. Because it's lazy and lacking credibility: it's a claim to being privy to 'the correct path for society', without showing the ability to create something of value. The state could still tap market forces to bring about public squares that abide with its guidelines, by providing subsidies to private parties developing such platforms, in exchange for the parties entering into an irrevocable covenant that requires them to follow the state's rules.
      - oefnak 5y ago
        1. A company is not a person. Also, the company did not have to go to jail, it got a fine.
        raxxorrax 5y ago
        "Punks" arguing for corporate rights to ban content in the name of human rights. I think I will take a stroll through the forest, maybe I meat a bear that plays guitar and sells refreshing lemonade. I am prepared for anything.
        CryptoPunk 5y ago
ghayes 5y ago
Is this not in direct conflict with the quote from the article / OP. The summary should have this been “regardless of the the contract, we hold that …” which is different from the aforementioned quote: > The German court held that YouTube failed to make its enforcement authority clear in its contract with the account operator who posted the video.
- Phil_Latio 5y ago
  The OP is about the ruling of a lower court though. I guess they didn't even reach the fundamental question.
- yorwba 5y ago
  It's a multi-layered argument and a bit of it probably got lost in the process of summarizing it for news reporting and the subsequent translation. You can find the original decision from April 2021 where YouTube was ordered to put the video back up here https://www.justiz.sachsen.de/esamosplus/pages/index.aspx https://www.justiz.sachsen.de/esamosplus/pages/index.aspx by searching for Aktenzeichen "4 W 118/21" and then clicking on „Dokument öffnen“. It does contain language quite similar to "regardless of the contract, we hold that ...": Dahingestellt bleiben kann dabei, ob die Nutzungsbedingungen bzw. die „Richtlinie zur medizinischen Fehlinformation über COVID-19“ einer AGB-rechtlichen Kontrolle standhalten, insbesondere, ob sie dem Transparenzgebot genügen bzw. den Nutzer nicht unangemessen benachteiligen (§307 BGB). Denn die Inhalte des streitgegenständlichen Videos verstoßen bereits nicht gegen die Ende Januar 2021 gültige „Richtlinie zu medizinischen Fehlinformation über COVID-19“ (aa). Bezüglich der Neufassung der vorgenannten Richtlinie hat die Beklagte dagegen nicht glaubhaft gemacht, dass diese wirksam in den Vertrag einbezogen ist (bb). "The question whether the terms of use resp. the "guidelines regarding medical disinformation about COVID-19" would withstand a check under ToS-law, especially whether they are sufficiently transparent resp. inappropriately disadvantage the user (§307 BGB) can be left aside. Because the content of the video under dispute already does not run counter to the "guidelines regarding medical disinformation about COVID-19" that were in effect at the end of January 2021 (aa). As for the revised version of the aforementioned guidelines, the accused has not convincingly argued that it has been effectively incorporated into the contract (bb)."
remarkEon 5y ago
>wrote this in one of their rulings: Which ruling? Have a link (in German is fine)?
- Phil_Latio 5y ago
  https://openjur.de/u/2271157.html https://openjur.de/u/2271157.html Absatz 110
bsd44 5y ago
That's very encouraging. We should make this a law on the EU-level.
em-bee 5y ago
i love this because to all those who say that only government may not censor and private companies can do whatever they want, it makes clear that censorship by private companies that dominate our communication has the same effect as government censorship, and should therefore be under the same restrictions.

throwawayboise 5y ago

This is as it should be IMO. When you position yourself to be a de-facto public square, you shouldn't get to selectively operate like a private club when it suits you.

raxxorrax 5y ago
Don't judge too quickly. The ruling also made clear that it is judges who determine if content violates the law. It was not the case here. But it also means that platforms would have to comply with the judiciary restricting content and face fines if they don't. That wouldn't be too positive for the net and its development under certain circumstances. Double-edged sword...
- kaba0 5y ago
  I don’t see how would it be a double-edged sword. It’s a meme, but we do in fact live in a society, with laws made mostly democratically by people (ideally) — which is the closest thing at this scale to a fair system. Why should a private company get to decide what it wants over the local laws? If it were to host child porn, should we be okay with that even though we collectively have voted to ban any form of pornography of minors?
eli 5y ago
Seems like Germany should simply nationalize the platform if that's what they want.
- whbrown 5y ago
  It's not theirs to take. And anyhow, the GDR dissolved over 30 years ago, I should think their economic policies died with them.
  - eli 5y ago
    Is it theirs to force them to host content Google wishes to delete?
    - whbrown 5y ago
      It's theirs to host the videos themselves if they deem them worthy of being hosted.
      - eli 5y ago
        The German government? Yeah I think they should host videos themselves if they want them to be online and google doesn’t.
    - adamdusty 5y ago
      I don't think it's unreasonable for companies with publicly available communication platforms be required to abide by laws in the countries they make those platforms available in. If youtube decided that they would host videos in germany on an invite only basis, it would be different.
      - eli 5y ago
        No matter what the law?
- zucker42 5y ago
  Do you think Germany "nationalizing" YouTube is less extreme than this ruling?
pionar 5y ago
Hmm, when did they do this? I actually think Germany has it backwards here. If the German government wants to provide a free-speech "safe zone", they should provide it themselves. You're encouraging government coercion of action.
- username90 5y ago
  > If the German government wants to provide a free-speech "safe zone", they should provide it themselves. But that is what they are doing here, no? They just use Youtube as the way to provide it. Governments doesn't have to run businesses themselves, private actors are much better at running the day to day stuff usually. Similarly if you own a huge amount of land and build a city there and let lots of people move in, don't get surprised when the government seizes your square and roads and make them public, or at least force you to let people move there as if they were public roads.
  - travismark 5y ago
    but the government isn't paying YouTube to host videos. eminent domain and related takings require compensation
    - eqvinox 5y ago
      This isn't eminent domain, the government didn't decide to build a video service that they need to evict Youtube for. Apparently Youtube decided to remove a video without proper support in their terms of service, so they're being judged to be in violation of their contract with the user. Whether or not Youtube should have a clause in their terms allowing them to remove arbitrary content is a different question, and yet another is whether they should be allowed to have such a clause.
    - imwillofficial 5y ago
      Perhaps in your jurisdiction, but in this hypothetical example, I guess not.
    - mikem170 5y ago
deminature 5y ago
Isn't this punishing Youtube for their own success at achieving a dominant market position? They didn't position themselves as the de-facto public square so much as became one due to lack of competition.
- xdennis 5y ago
  > Isn't this punishing Youtube for their own success at achieving a dominant market position? Yes, and that's a good thing because it encourages competition. No market should have a player with such a dominant position.
- wizzwizz4 5y ago
  YouTube's very “success” is “rewarding”. But to me, it's not a punishment. It's a natural consequence of YouTube's dominant position: they have to start acting like it.
- dnate 5y ago
  Sure, but it's also the job of the government to oversee the power corporations have and how they wield it. No single corporation should be allowed to actively shape and censor information just because they are successful / a monopoly.
  - deleted 5y ago
    [deleted]
- tjs8rj 5y ago
  Yes. Not so much a punishment as a responsibility that comes with the position. The state isn’t special: if you have deep and fundamental influence over the lives of others, you are burdened with certain responsibilities. Who cares if youtube is a private company, and it’s not liking forcing them to respect rights is hurting their pocket book: if you have that much power over people, you are held accountable. This idea that private companies earn special privileges in this regard because they were started by individuals needs to die.
  - 5y ago
drdeca 5y ago
I think that, at least if you replace "shouldn't get to" with "shouldn't", then for some values of "position yourself to be", this would be right. I feel like it is largely a question of what expectations you work to produce among users and potential users. If people are actively aware of the organization saying "we can remove videos on a whim if we want to, and we very well might do so", and especially if they are generally known to occasionally do that in practice, and this isn't a surprise to any users with a reasonable level of awareness, then I think that's probably fine. But if the impression they give to a typical reasonable person is that they are "a platform for almost everyone that behaves according to fixed rules, where you can be reasonably assured that if you follow the stated rules your content will stay available, as much as we are able to accomplish this", but then they go around removing videos on a whim / because they have a grudge against someone / because someone paid them to / whatever , then that's not good, because they aren't being honest about the service they provide. Whether the govt has any place making an organization who is misbehaving in that particular way stop, I'm, not sure one way or the other.
wesleywt 5y ago
They are not a public square. They do have the right to censor you. Especially, if you spread misinformation and hatred.
- defen 5y ago
  Isn't the whole point of this ruling that they don't have that right, at least in Germany?
CryptoPunk 5y ago
If the people want a free-speech-respecting public square, they should petition their state to create one that is compelling enough to become the choice of the majority, not let private citizens do the hard work of creating an effective square, and then use force to commandeer it.
- 4h53n 5y ago
  Why? We could let the free market come up with competing solutions and regulate where necessary.
  - CryptoPunk 5y ago
    1. Because it's a violation of other people's rights to control their own private property. It's predicated on using the threat of imprisonment against people acting peacefully, which infringes upon human rights. 2. Because it's lazy and lacking credibility: it's a claim to being privy to 'the correct path for society', without showing the ability to create something of value. The state could still tap market forces to bring about public squares that abide with its guidelines, by providing subsidies to private parties developing such platforms, in exchange for the parties entering into an irrevocable covenant that requires them to follow the state's rules.
    - oefnak 5y ago
      1. A company is not a person. Also, the company did not have to go to jail, it got a fine.
      - raxxorrax 5y ago
        "Punks" arguing for corporate rights to ban content in the name of human rights. I think I will take a stroll through the forest, maybe I meat a bear that plays guitar and sells refreshing lemonade. I am prepared for anything.
        CryptoPunk 5y ago

ghayes 5y ago

Is this not in direct conflict with the quote from the article / OP. The summary should have this been “regardless of the the contract, we hold that …” which is different from the aforementioned quote: > The German court held that YouTube failed to make its enforcement authority clear in its contract with the account operator who posted the video.

Phil_Latio 5y ago
The OP is about the ruling of a lower court though. I guess they didn't even reach the fundamental question.
yorwba 5y ago
It's a multi-layered argument and a bit of it probably got lost in the process of summarizing it for news reporting and the subsequent translation. You can find the original decision from April 2021 where YouTube was ordered to put the video back up here https://www.justiz.sachsen.de/esamosplus/pages/index.aspx https://www.justiz.sachsen.de/esamosplus/pages/index.aspx by searching for Aktenzeichen "4 W 118/21" and then clicking on „Dokument öffnen“. It does contain language quite similar to "regardless of the contract, we hold that ...": Dahingestellt bleiben kann dabei, ob die Nutzungsbedingungen bzw. die „Richtlinie zur medizinischen Fehlinformation über COVID-19“ einer AGB-rechtlichen Kontrolle standhalten, insbesondere, ob sie dem Transparenzgebot genügen bzw. den Nutzer nicht unangemessen benachteiligen (§307 BGB). Denn die Inhalte des streitgegenständlichen Videos verstoßen bereits nicht gegen die Ende Januar 2021 gültige „Richtlinie zu medizinischen Fehlinformation über COVID-19“ (aa). Bezüglich der Neufassung der vorgenannten Richtlinie hat die Beklagte dagegen nicht glaubhaft gemacht, dass diese wirksam in den Vertrag einbezogen ist (bb). "The question whether the terms of use resp. the "guidelines regarding medical disinformation about COVID-19" would withstand a check under ToS-law, especially whether they are sufficiently transparent resp. inappropriately disadvantage the user (§307 BGB) can be left aside. Because the content of the video under dispute already does not run counter to the "guidelines regarding medical disinformation about COVID-19" that were in effect at the end of January 2021 (aa). As for the revised version of the aforementioned guidelines, the accused has not convincingly argued that it has been effectively incorporated into the contract (bb)."

remarkEon 5y ago

>wrote this in one of their rulings: Which ruling? Have a link (in German is fine)?

Phil_Latio 5y ago
https://openjur.de/u/2271157.html https://openjur.de/u/2271157.html Absatz 110

bsd44 5y ago

That's very encouraging. We should make this a law on the EU-level.

em-bee 5y ago

i love this because to all those who say that only government may not censor and private companies can do whatever they want, it makes clear that censorship by private companies that dominate our communication has the same effect as government censorship, and should therefore be under the same restrictions.