Facebook users in Germany often wonder whether they incur liability if they share unlawful content posted by third parties. In a recent decision regarding privacy rights, the Dresden Higher Regional Court held that merely sharing a Facebook post does not incur liability (judgment of 7 February 2017 - 4 O 1419/16). However, the user would be liable if he adopted the content as his own, by making affirmative comments with regard to it or otherwise signifying that he identifies with the content.
In the case before the Dresden Higher Regional Court, a Facebook user shared the link to an author’s website, commenting that the contribution on that website was "too worthy of consideration to be withheld". The court held that case law requires the circulator to have adopted the statements as his own before liability will be triggered. (See German Federal Court of Justice AfP 2010, 72.)
In the opinion of the Dresden Higher Regional Court, using the “share” function on Facebook does not amount to adopting the post as one's own. No significance beyond the circulation of the post is to be attributed to the "sharing" in itself.
In this case, however, the user went beyond merely "sharing", and also commented on the post by stating "too worthy of consideration to be withheld". This is to be understood as "urgently recommended reading", says the Court. The average recipient of the shared post could understand such a recommendation to be identification with the content of the shared opinions.
According to the Court, the addition on "too worthy of consideration" makes it clear that the user has seriously dealt with the topic of the content. He compared the content with his own opinions and considered it so important that he felt morally obligated to make this article available to his "friends" on Facebook. There is thus a lack of sufficient dissociation from the content posted by the third party.
The decision by the Dresden Higher Regional Court is in line with the decision by the Frankfurt Higher Regional Court of 26 November 2015 – 16 U 64/15. According to that decision, Facebook users can safely share third-party statements as long as they do not comment on them affirmatively in any way. Facebook users should therefore be careful, particularly when they click the "Like" button.
The judgment was rendered with regard to privacy rights. Whether sharing content on Facebook constitutes copyright infringement has not yet been decided by the highest courts. The current ECJ ruling (see GS Media und BestWater), like the decision by the Frankfurt a.M. Regional Court (judgment of 17 July 2014 – 2/03 S 2/14), would suggest that sharing Facebook posts is not a copyright infringement.