Does Facebook speak German?

The Düsseldorf Higher Regional Court (Oberlandesgericht) had to decide whether German documents served on Facebook in Ireland had to be in English, the local language. Facebook refused to accept documents. The court decided that although an individual who could not speak German might have been able to require a translation, a big company like Facebook certainly had employees who could handle German law and indeed it had a German-language website.

Decision in German.

There is an excellent blog post on the case in English on Peter Bert’s weblog Dispute Resolution in Germany. I don’t think I’ve seen this blog before and it’s very interesting.

Back in December 2019, the headline to my post on that very topic still had a question mark: “Does Facebook speak German?” I had reported on what appeared to be only the second decision by a German court of appeals (Oberlandesgericht) on the issue whether Facebook Ireland, the legal entity operating Facebook’s German activities, is entitled to refuse service of German-language court documents under Article 8 of the European Service Regulation.*

I concluded by saying that the Munich order contributed to what German lawyers love to refer to as “prevailing jurisprudence” (herrschende Rechtsprechung) or “prevailing opinion” (herrschende Meinung): Facebook does understand German. This recent decision of the Court of Appeals in Düsseldorf does confirm this conclusion: The headline of the court’s press release yesterday read “Facebook kann Deutsch” – Facebook does speak German. The court held in a ruling concerning a cost application that Facebook cannot insist on a translation of German documents into English.

I want to comment on some of the terminology choices made here. The first one is to translate Beschluss as order. This is common and I have certainly had to do it in the past because a client insisted. Here is a definition from Juraforum:

Der Beschluss ist zu unterscheiden von anderen gerichtlichen Entscheidungen, zu denen das Urteil und die Verfügung zählen. Er ist vor allem dadurch gekennzeichnet, dass er keinen Tatbestand (Sachverhalt) und keine Entscheidungsgründe enthält. Somit beinhaltet er nur den Tenor der Entscheidung und ist daher in der Praxis bei Richtern sehr beliebt.

To my mind a Beschluss is a decision or ruling. It is a kind of decision. It does not set out the facts or give the reasons for the decision but just contains the operative part of the decision. I don’t think that can be conveyed in one word in English, and the context is not usually such that a detailed definition is needed. Maybe there is some usage of order in English that I have missed?

Another point I would simply disagree with is the use of jurisprudence for Rechtsprechung. Rechtsprechung means court decisions or case law. Jurisprudence means legal theory. I think that to refer to case law as jurisprudence is a gallicism.

6 thoughts on “Does Facebook speak German?

  1. Thank you for this thoughtful analysis. I agree with you on “Beschluss” and also think in light of its definition that “decision” might be the best match. Also, “order” might rather be used to translate “Verfügung”. That’s how I have it often seen used by lawyers commenting on German law.
    What bothered me most in Peter Bert’s weblog was the use of “prevailing jurisprudence” for “herrschende Rechtsprechung”. As you pointed out, this is plainly false. There are many good translations, “established case law” being one of them, but certainly not “jurisprudence” (Black’s: ” … the study of the general or fundamental elements of a particular legal system, as opposed to its practical and concrete details.”) That’s really a far cry from “case law”.

  2. Three things.

    First, I don’t know what ‘order’ means in the United Kingdom. In the United States, an order

    ‘is the mandate or determination of the court upon some subsidiary or collateral matter arising in an action, not disposing of the merits, but adjudicating a preliminary point or directing some step in the proceedings’ (Henry Campbell Black, A Treatise on the Law of Judgments, § 1, at 5, quoted in Black’s Law Dictionary, 9th Edition).

    In General, Beschlüsse fit this definition nicely, as the Wikipedia entry for Beschluss puts it: ‘Beschlüsse entscheiden häufig nur über einzelne Verfahrensfragen’ ( The Facebook Beschluss fits this definition very nicely; it adjudicates a preliminary point in the proceedings: that is, service of process of documents in a specific language.

    It is, therefore, not too far-fetched to say that order and Beschluss are terms of art very similar to one another both in Germany and in the United States. This similarity is also bolstered by the kinds of matters that become the subject of orders and Beschlüsse. For instance, orders/Beschlüsse are routinely issued by courts on both sides of the Atlantic for preliminary injunctions, corrections to court rulings, and the like. Doesn’t English and Welsh law have something similar?

    Second, the definition of Beschluss quoted by you contradicts the Facebook Beschluss. That definition states that Beschlüsse are characterized by their not having Entscheidungsgründe, but the Facebook Beschluss has a section entitled Gründe. One must download the entire PDF, which one can find here:

    Third, one meaning of the term ‘jurisprudence’ is

    ‘Judicial precedents considered collectively’ (see Black’s Law Dictionary, 9th Edition).

    And this is precisely how Mr. Bert seems to understand this term. His understanding leads me to believe that the foregoing definition of this term shares some important aspects on both sides of the pond.

    • Actually, even if I did use jurisprudence in that sense, I would still not like it for herrschende Rechtsprechung. Obviously others will differ.

  3. Hi Peter,
    Then Beschluss has more than one meaning. Quoting your Wikipedia, it goes on “Es gibt aber auch Beschlüsse, die ein Verfahren abschließen.”
    These are the ones I mean that it seems odd to translate as order.

    As for your second, maybe my definition was not complete enough for you. If I defined everything down to the last detail, it wouldn’t serve the communication of my point. With which you disagree, as is your right!

    And the third, how many definitions of jurisprudence does Black’s have?

    • Hello Margaret:

      Black’s lists seven definitions of ‘jurisprudence.’ The definition cited by Inge is the second, the one cited by me the fifth. And the seventh comprises one word only: caselaw.

  4. Thanks very much. I haven’t looked at Black’s for ages – looked at great length when the 6th ed. appeared, such an improvement – but now I have fired up my iPad and found that my digital version of the 9th is not compatible with the latest operating system. I think I may rejoin the London Library which would give me access to lots of useful stuff online.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.