https://gdprhub.eu/api.php?action=feedcontributions&user=2A01%3A4F8%3A231%3A1DE2%3A0%3A0%3A1001%3A18&feedformat=atomGDPRhub - User contributions [en]2024-03-29T08:10:34ZUser contributionsMediaWiki 1.39.6https://gdprhub.eu/index.php?title=ANSPDCP_(Romania)_-_Fine_against_Condor_SA&diff=25048ANSPDCP (Romania) - Fine against Condor SA2022-03-30T15:20:29Z<p>2A01:4F8:231:1DE2:0:0:1001:18: </p>
<hr />
<div>{{DPAdecisionBOX<br />
<br />
|Jurisdiction=Romania<br />
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<br />
|Case_Number_Name=Fine against Condor SA<br />
|ECLI=<br />
<br />
|Original_Source_Name_1=ANSPDCP<br />
|Original_Source_Link_1=https://www.dataprotection.ro/?page=Comunicat_Presa_28_03_2022&lang=ro<br />
|Original_Source_Language_1=Romanian<br />
|Original_Source_Language__Code_1=RO<br />
<br />
|Type=Investigation<br />
|Outcome=Violation Found<br />
|Date_Started=<br />
|Date_Decided=<br />
|Date_Published=28.03.2022<br />
|Year=<br />
|Fine=2000<br />
|Currency=EUR<br />
<br />
|GDPR_Article_1=Article 32(1) GDPR<br />
|GDPR_Article_Link_1=Article 32 GDPR#1<br />
|GDPR_Article_2=Article 32(2) GDPR<br />
|GDPR_Article_Link_2=Article 32 GDPR#2<br />
|GDPR_Article_3=Article 32(4) GDPR<br />
|GDPR_Article_Link_3=Article 32 GDPR#4<br />
<br />
<br />
<br />
|Party_Name_1=Condor SA<br />
|Party_Link_1=https://www.condor-sa.ro/index_en.html<br />
|Party_Name_2=<br />
|Party_Link_2=<br />
|Party_Name_3=<br />
|Party_Link_3=<br />
|Party_Name_4=<br />
|Party_Link_4=<br />
|Party_Name_5=<br />
|Party_Link_5=<br />
<br />
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<br />
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|<br />
}}<br />
<br />
The Romanian DPA issued a fine of approximately €2000 against a controller for not implementing the necessary security measures to avoid unauthorised access to the personal data of its current and former employees, in violation of [[Article 32 GDPR#1|Articles 32(1)]], [[Article 32 GDPR#2|(2)]] and [[Article 32 GDPR#4|(4) GDPR]]. <br />
<br />
== English Summary ==<br />
<br />
=== Facts ===<br />
A data subject filed a claim before the Romanian DPA (ANSPDCP) against Condor SA, a parachute and military flight equipment manufacturer, claiming that it had disclosed the personal data (including data on salaries) of its current and former employees to an unauthorised person. <br />
<br />
=== Holding ===<br />
The ANSPDCP found that someone had gained unauthorised access to a document containing the personal data of current and former employees, which included, inter alia, name and surname, role, salary, bank account and personal identification number. <br />
<br />
The ANSPDCP held that the controller had not implemented the necessary technical and organisational measures to ensure the confidentiality of its current and former employees' personal data, and did not prove to have adequately trained its personnel regarding the protection of personal data. As a result, the ANSPDCP held that the controller had violated [[Article 32 GDPR#1|Articles 32(1)]], [[Article 32 GDPR#2|(2)]] and [[Article 32 GDPR#4|(4) GDPR]], and issued a fine of approximately €2000 (RON 9.897,4). <br />
<br />
Additionally, the as corrective measures, the ANSPDCP ordered the controller to implement appropriate technical and organisational measures to ensure compliance with GDPR, including the adequate training its personnel, and also to contact the individual who was granted unauthorised access to the personal data to make sure they delete it. <br />
<br />
== Comment ==<br />
''Share your comments here!''<br />
<br />
== Further Resources ==<br />
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<br />
== English Machine Translation of the Decision ==<br />
The decision below is a machine translation of the Romanian original. Please refer to the Romanian original for more details.<br />
<br />
<pre><br />
28.03.2022<br />
<br />
Sanction for violating the RGPD<br />
<br />
<br />
<br />
The National Supervisory Authority completed in March 2022 an investigation at the operator Condor SA and found the violation of the provisions of art. 32 para. (1), (2) and (4) of the General Data Protection Regulation.<br />
<br />
As such, the operator was sanctioned with a fine of 9,897.4 lei (equivalent to 2,000 EURO).<br />
<br />
The investigation was initiated as a result of a complaint alleging that the operator Condor SA disclosed personal data of a salary nature of the employees or former employees of this operator to unauthorized persons.<br />
<br />
In the investigation, it was found that there was unauthorized access to some unspoken documents containing a number of personal data of employees or former employees, such as: place of work, name, surname, position, salary, amount for advance, bank account, personal numeric codes.<br />
<br />
Consequently, the National Supervisory Authority found that the operator Condor SA did not present evidence showing that it had adopted sufficient appropriate technical and organizational measures to ensure the confidentiality of the processed personal data of employees or its former employees. At the same time, it was noted that the operator did not present any evidence showing the training of data controllers under his authority, which led to unauthorized access to documents. Thus, the provisions of art. 32 para. (1), (2), (4) of the General Data Protection Regulation.<br />
<br />
At the same time, during the investigation, two corrective measures were applied to the operator, as follows:<br />
<br />
the corrective action to ensure compliance with the General Data Protection Regulation of personal data processing operations, by implementing appropriate technical and organizational measures, including the training of data controllers under its authority; corrective action to ensure compliance with the General Data Protection Regulation of personal data processing operations by contacting the person who had unauthorized access to that personal data, with a view to deleting or destroying it, as appropriate.<br />
<br />
<br />
<br />
Legal and Communication Department<br />
<br />
A.N.S.P.D.C.P.<br />
</pre></div>2A01:4F8:231:1DE2:0:0:1001:18https://gdprhub.eu/index.php?title=GHDHA_-_200.290.360-01&diff=25045GHDHA - 200.290.360-012022-03-30T15:06:03Z<p>2A01:4F8:231:1DE2:0:0:1001:18: /* English Summary */</p>
<hr />
<div>{{COURTdecisionBOX<br />
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<br />
|Case_Number_Name=200.290.360-01<br />
|ECLI=ECLI:NL:GHDHA:2021:2793<br />
<br />
|Original_Source_Name_1=Rechtspraak.nl<br />
|Original_Source_Link_1=https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHDHA:2021:2793&showbutton=true&keyword=AVG<br />
|Original_Source_Language_1=Dutch<br />
|Original_Source_Language__Code_1=NL<br />
<br />
|Date_Decided=14.12.2021<br />
|Date_Published=28.03.2022<br />
|Year=2021<br />
<br />
|GDPR_Article_1=Article 12(3) GDPR<br />
|GDPR_Article_Link_1=Article 12 GDPR#3<br />
|GDPR_Article_2=Article 13 GDPR<br />
|GDPR_Article_Link_2=Article 13 GDPR<br />
|GDPR_Article_3=Article 14 GDPR<br />
|GDPR_Article_Link_3=Article 14 GDPR<br />
|GDPR_Article_4=Article 15 GDPR<br />
|GDPR_Article_Link_4=Article 15 GDPR<br />
|GDPR_Article_5=Article 23(1)(i) GDPR<br />
|GDPR_Article_Link_5=Article 23 GDPR#1i<br />
<br />
<br />
|National_Law_Name_1=Article 10a Lawyer's Act<br />
|National_Law_Link_1=https://wetten.overheid.nl/jci1.3:c:BWBR0002093&afdeling=2&artikel=10a&z=2020-07-01&g=2020-07-01<br />
|National_Law_Name_2=Article 11a Lawyer's Act<br />
|National_Law_Link_2=https://wetten.overheid.nl/jci1.3:c:BWBR0002093&afdeling=2&artikel=11a&z=2020-07-01&g=2020-07-01<br />
<br />
|Party_Name_1=Nauta Dutilh<br />
|Party_Link_1=https://www.nautadutilh.com/en<br />
|Party_Name_2=<br />
|Party_Link_2=<br />
|Party_Name_3=<br />
|Party_Link_3=<br />
|Party_Name_4=<br />
|Party_Link_4=<br />
|Party_Name_5=<br />
|Party_Link_5=<br />
<br />
|Appeal_From_Body=Unknown<br />
|Appeal_From_Case_Number_Name=C/10/591473 / HA RK 20-144<br />
|Appeal_From_Status=<br />
|Appeal_From_Link=<br />
|Appeal_To_Body=<br />
|Appeal_To_Case_Number_Name=<br />
|Appeal_To_Status=Unknown<br />
|Appeal_To_Link=<br />
<br />
|Initial_Contributor=Giel Ritzen<br />
|<br />
}}<br />
<br />
The Court of Appeal Den Haag held that a law firm could restrict the information provided to data subjects pursuant to [[Article 13 GDPR|Articles 13]], [[Article 14 GDPR|14]], and [[Article 15 GDPR|15 GDPR]], in order to comply with their professional confidentiality obligations.<br />
<br />
== English Summary ==<br />
<br />
=== Facts ===<br />
The controller is Nauta Dutilh, a law firm. The data subject is a former advisor of a government institution, the “House for Whistleblowers” (the House), which is a public organisation where whistleblowers can report “societal abuses” and which investigates the treatment of whistleblowers. Between September 2018 and May 2019, the data subject reported several suspicions of wrongdoings, concerning the general functioning of the House, and the appointment procedure of their chairman. On 2 May 2019, the data subject reported internal (confidential) suspicions of wrongdoings to two newly appointed board members of the House. On 21 May 2019, the data subject was suspended, after which he was formally fired on 26 July 2019. <br />
<br />
The data subject suspected that the chairman and two board members which he contacted, had been advised by the law firm Nauta Dutilh, the controller in this case. On 25 July 2019, the data subject made an access request with the controller, and requested a copy of his personal data pursuant to [[Article 15 GDPR|Article 15 GDPR]]. The controller confirmed that they processed his personal data (name, last name, address, email-address, and picture), but also stated that they cannot provide all information due to professional confidentiality. <br />
<br />
The data subject brought the case before Court, requesting the Court to order the controller to provide him and the Dutch DPA with a copy of all personal data relating to him and all processing thereof processed by Nauta, and all information listed in [[Article 13 GDPR|Articles 13]], [[Article 14 GDPR|14]], and [[Article 15 GDPR|15 GDPR]]. However, the Court considered that the controller’s professional confidentiality limits the data subject’s right of access pursuant to [[Article 23 GDPR|Article 23 GDPR]], and did not find any violations. The data subject then filed an appeal. <br />
<br />
=== Holding ===<br />
The Court of Appeal rejected the appeal. <br />
<br />
First, it confirmed the argumentation of the Court of first instance. The Court of first instance stated that the right of access can be restricted by a legislative measure pursuant to [[Article 23 GDPR|Article 23 GDPR]]. Moreover, it noted that the professional confidentiality of a lawyer, which is laid down in Articles 10a and 11a of the (Dutch) Laywer’s Act, is a legislative measure that serves one of the objectives listed in Article 23, namely [[Article 23 GDPR#1i|Article 23(1)(i) GDPR]]. After all, the Court of first instance notes, “''compliance with the obligation of secrecy by the legal profession is a basic condition for the functioning of the rule of law”.'' This secrecy even extends to the question whether someone has requested the services of a lawyer. <br />
<br />
Second, it rejected the data subject’s grievance that Articles 10a and 11a Lawyer’s Act did not fulfil the requirements of [[Article 23 GDPR|Article 23 GDPR]], in light of the [https://edpb.europa.eu/system/files/2021-10/edpb_guidelines202010_on_art23_adopted_after_consultation_en.pdf EDPB’s ‘Guidelines 10/2020 on restrictions under Article 23’]. Third, it reiterated that the restrictions respect the principles of necessity, proportionality, and subsidiarity, and referred (again) to the Court of First instance’s statement that “''compliance with the obligation of secrecy by the legal profession is a basic condition for the functioning of the rule of law''”. <br />
<br />
== Comment ==<br />
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<br />
== Further Resources ==<br />
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<br />
== English Machine Translation of the Decision ==<br />
The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.<br />
<br />
<pre><br />
COURT OF THE HAGUE<br />
<br />
Department of Civil Law<br />
<br />
Case number : 200.290.360/01<br />
<br />
Court case and case number: C/10/591473/ HA RK 20-144<br />
<br />
(not published on Rechtspraak.nl)<br />
<br />
decision of December 14, 2021<br />
<br />
in the case of<br />
<br />
[appellant],<br />
<br />
residing at [residence],<br />
<br />
the applicant on appeal,<br />
<br />
hereinafter referred to as: [appellant],<br />
<br />
appeared in person,<br />
<br />
against<br />
<br />
NAUTA DUTILH N.V.,<br />
<br />
located in Rotterdam,<br />
<br />
defendant on appeal,<br />
<br />
hereinafter referred to as: Nauta,<br />
<br />
lawyer: mr. R.L. Ubels in Amsterdam.<br />
<br />
What the matter is about<br />
<br />
Invoking the General Data Protection Regulation, the applicant, a former adviser to a government agency, wants the defendant, a law firm, to be ordered by the civil court to provide him, inter alia, with a copy of all personal data concerning him processed by the law firm, certain other information and to notify the Dutch Data Protection Authority and him of infringements. The law firm takes the position that the duty of confidentiality of lawyers stands in the way of granting the request.<br />
<br />
The procedure on appeal<br />
<br />
1.1<br />
<br />
The course of the appeal procedure is apparent from the following documents:<br />
<br />
†<br />
<br />
the notice of appeal of 9 February 2021, with exhibits, in which [appellant] has lodged an appeal against the decision of the District Court of Rotterdam of 9 November 2020 given between the parties (hereinafter: the contested decision, or: the decision against which appeal);<br />
<br />
†<br />
<br />
the statement of defense;<br />
<br />
†<br />
<br />
the deed with specified and supplemented offer of evidence and response to defense NautaDutilh, with a production.<br />
<br />
1.2<br />
<br />
On September 21, 2021, the case was heard orally at the court hearing. An official report has been drawn up of the hearing and is enclosed with the documents. At the end of the hearing, the verdict is set for November 30, 2021.<br />
<br />
1.3<br />
<br />
The verdict has been determined as of today.<br />
<br />
The facts<br />
<br />
2.1<br />
<br />
For a better understanding of the case, the court briefly summarizes the following facts alleged by [appellant]. With this statement of fact, the Court of Appeal apparently also meets ground 2 of the notice of appeal of [appellant]. Nauta disputes these facts and, invoking its duty of confidentiality, argues that it cannot respond to them substantively.<br />
<br />
(a) [appellant] has been working as an advisor at the House for Whistleblowers (hereinafter: the House) since 1 July 2016.<br />
<br />
(b) On 17 September 2018, [appellant] announced to the Secretary-General of the Ministry of the Interior and Kingdom Relations that he, together with another person, wanted to report suspected abuses in relation to the House. At about the same time, [appellant] informed the employees of the House of this.<br />
<br />
(c) On December 18, 2018, the Secretary-General notified the Speaker of the House of the report, the subject matter of the report and, with the consent of [appellant], that [appellant] is one of the reporters.<br />
<br />
(d) Outwardly, the subjects of the notification have been described as the general functioning of the House and the appointment procedure of the current Speaker of the House.<br />
<br />
(e) On 2 May 2019, [appellant] made internal (confidential) reports of (new) suspicions of abuses to two new board members of the House.<br />
<br />
(f) Effective May 21, 2019, the Speaker of the House suspended [appellant] and denied access to the House office and his workplace. On July 3, 2019, [appellant] was sent an intention to dismiss.<br />
<br />
(g) The suspicion has arisen with [appellant] that the Speaker of the House has been advised by a lawyer of Nauta in connection with the suspension decision and the intended dismissal and that the board members also have themselves in connection with the handling of the internal reports. have been advised by a lawyer from Nauta. [appellant] is of the opinion that there is a conflict of interests between these two 'clusters of issues'.<br />
<br />
(h) With an explanation of these two clusters of issues and this conflict of interest, [appellant] informed Nauta's data protection officer by letter dated 25 July 2019 pursuant to art. 15 paragraph 3 and art. 12 paragraph 3 of the General Data Protection Regulation (GDPR) requested him to provide him with a copy of all personal data concerning him processed by Nauta and to provide him with all data referred to in art. 13, art. 14 and art. 15 AVG to provide intended information.<br />
<br />
(i) A dismissal decision was emailed to [appellant] on 26 July 2019.<br />
<br />
(j) By letter dated August 8, 2019, the data protection officer of Nauta, in response to his request for information of July 25, 2019, informed [appellant] as follows:<br />
<br />
I can hereby confirm that we process the following personal data about you:<br />
<br />
The personal data as stated in your information request: first name, last name, address, e-mail address and photo.<br />
<br />
We process your personal data to handle your access request. †<br />
<br />
In view of our professional secrecy, we cannot make any statements about the clusters of issues you have mentioned.”<br />
<br />
(k) [appellant] subsequently made several renewed and additional requests for information to Nauta's data protection officer. In response thereto (the data protection officer of) Nauta informed [appellant] each time that the request did not give Nauta reason to revise its position.<br />
<br />
The procedure at the court<br />
<br />
3.1<br />
<br />
[Buyer] initiated the proceedings with the court by filing a petition pursuant to art. 35 of the General Data Protection Regulation Implementing Act (UAvg). Briefly, he requested the court to order Nauta to provide him with a copy of all personal data concerning him processed by Nauta and all processing thereof, and also to provide him with other information as referred to in artt. 13, 14 and 15 Avg. Furthermore, [appellant] requested the court to notify the Dutch Data Protection Authority and himself of infringements in connection with personal data concerning him processed by Nauta, all this under penalty of forfeiting a penalty payment to him.<br />
<br />
3.2<br />
<br />
The court rejected the request. To this end, the court has considered, briefly summarized, that the right of access under the AVG and the UAvg is not unlimited and that the confidentiality obligation of (the lawyers of) Nauta entails a limitation of the right of inspection within the meaning of art. 23 Avg, so that Nauta is not obliged to provide [appellant] with more information than she has done. In addition, the court considered that it cannot be established that infringements have taken place. The court has compensated the costs of the proceedings, in the sense that each party bears its own costs.<br />
<br />
The appeal<br />
<br />
4.1<br />
<br />
On appeal, [appellant] wants – as the Court understands – that the contested decision be annulled. To that end, he puts forward eighteen grievances (objections).<br />
<br />
4.2<br />
<br />
On appeal, the Appellant requests the Court as follows:<br />
<br />
"I. Order NautaDutilh to provide me by electronic means within one week after the date of your decision, at least within a period to be determined in good justice by your Court of Appeal, by electronic means:<br />
<br />
A. a copy of all personal data concerning me processed by NautaDutilh and a copy of, or at least information about all processing of that personal data, in particular of all personal data concerning me that NautaDutilh has processed in relation to:<br />
<br />
†<br />
<br />
1. advising on the handling of my confidential information of the board members of the Advice Department and the Investigation Department of the House for Whistleblowers internal reports of suspected abuses of 18 March and 2 May 2019 and the related procedures,<br />
<br />
2. the advice on the handling of my confidentially submitted to the board members of the Advice Department and the Investigation Department of the House for Whistleblowers of 25 July 2019 and the related procedures,<br />
<br />
5. the advice on how to deal with my objection of 7 May 2019 submitted to the chairman of the House for Whistleblowers in relation to the letter of 3 April 2019, as well as my subsequent objections in relation to the letters of 12 February and 6 March 2019 and letter of 23 January 2019, and the related proceedings,<br />
<br />
6. the advice of the Speaker of the House for Whistleblowers, which has resulted in the suspension and dismissal decisions and the related procedures,<br />
<br />
7. handling my confidential information requests submitted to NautaDutilh from 25 July 2019 to 28 June 2020,<br />
<br />
8. the present proceedings at first instance,<br />
<br />
9. the investigation referred to in my information requests under A, and<br />
<br />
10. the measures and care referred to in my information requests under B;<br />
<br />
at least (if and to the extent that I.A cannot be assigned):<br />
<br />
B. a copy of all personal data concerning me processed by NautaDutilh and a copy of, or at least information about all processing of those personal data, in particular of all personal data concerning me that NautaDutilh has processed from which it appears or can be deduced directly or indirectly that I am the reporter of the internal reports, in relation to:<br />
<br />
[1, 2, 5 to 10 idem as under A above],<br />
<br />
with regard to the copy of the personal data concerning me processed by NautaDutilh:<br />
<br />
i. primarily in the form of (possibly partially blackened) copies of the documents in which my personal data and the processing thereof are included, and<br />
<br />
if and insofar as I should not be entitled to it<br />
<br />
ii. alternatively in the form of a complete overview, in comprehensible form;<br />
<br />
II. Order NautaDutilh within one week after the date of Your decision, at least within a period to be determined in good justice by Your Court of Justice, with regard to all personal data referred to above and all processing thereof:<br />
<br />
A. the in art. 5, art. 13, art. 14 and art. 15 para. 1 GDPR, in particular in relation to: [I.A, at least I.B above], and<br />
<br />
B. to provide information regarding the identity and contact details of all lawyers who are or have been involved as controller in the processing of my personal data, in particular in relation to: [1, 2, 5 to 10 idem as under IA above];<br />
<br />
III. Order NautaDutilh to make an explicit distinction in the copy to be provided pursuant to your order under I of the personal data concerning me processed by NautaDutilh and the processing of those personal data and in the information to be provided pursuant to your order under II, between: [1, 2, 5 to 10 idem as under IA above];<br />
<br />
IV. Order NautaDutilh within one week of the date of Your decision, at least within a period to be determined by Your Court of Justice in good justice:<br />
<br />
A. to notify the Dutch Data Protection Authority of all breaches in connection with personal data processed by NautaDutilh within the meaning of Art. 33 yo. art. 4 preamble and under 12 GDPR, which until the date of the decision of the District Court of Rotterdam of 9 November 2020, at least until the date of the Revised version of the application in first instance of 9 July 2020, at least until the date of my renewed information request of June 28, 2020, at least up to the date of my information request of July 25, 2019, and<br />
<br />
B. to notify me as a data subject as required by the GDPR of all breaches in connection with personal data processed by NautaDutilh concerning me within the meaning of Art. 34 yo. art. 4 preamble and under 12 GDPR, which until the date of the decision of the District Court of Rotterdam of 9 November 2020, at least until the date of the Revised version of the application in first instance of 9 July 2020, at least until the date of my renewed information request of June 28, 2020, at least until the date of my information request of July 25, 2019;<br />
<br />
V. all this on pain of a penalty of € 5,000 for each day or part thereof that NautaDutilh fails to comply in whole or in part with the execution of the order, with a maximum of € 100,000, at least on pain of a penalty to be determined by Your Court of Justice in good justice;<br />
<br />
VI. order NautaDutilh to pay the costs of these proceedings; and<br />
<br />
VII. Declare your decision provisionally enforceable to the extent possible.”<br />
<br />
4.3<br />
<br />
Nauta comes to the conclusion that the requests of [applicant] must be rejected – with which the defense on appeal seeks to confirm the decision of which appeal – and that [appellant] is ordered to pay the costs of these proceedings (the Court of Appeal understands: of this appeal).<br />
<br />
The admissibility of the applicant in the appeal<br />
<br />
5.1<br />
<br />
From the first paragraph of art. 35 UAvg follows that [appellant] as an interested party could turn to the court with a written request to order Nauta as controller to comply with the request as referred to in artt. 15 to 22 AVG can still be assigned. The fourth paragraph of art. 35 UAvg provides that this application need not be filed by a lawyer. In the opinion of the Court of Appeal, this provision is a special statutory provision within the meaning of Art. 278 paragraph 3 DCCP which entails that in a procedure on the basis of art. 35 UAvg on appeal the notice of appeal does not have to be signed by a lawyer. With regard to art. 46 of the Personal Data Protection Act (Wbp) – a predecessor of art. 35 UAvg – was ruled in the same sense in the appeal case law.1 It is not apparent from the parliamentary history of the UAvg that under the current implementing act this should be judged differently. The fact that [appellant]'s notice of appeal was submitted by himself and was not signed (and filed) by a lawyer therefore does not preclude its admissibility on appeal.<br />
<br />
The assessment of the appeal<br />
<br />
6.1<br />
<br />
The Court of Appeal finds that the amendments to his request made by [appellant] on appeal are not so much substantive but mainly textual and editorial in nature. As in the first instance, the request relates to the in artt. 13, 14 and 15 Avg and related obligations and rights, and on the information referred to in artt. 33 and 34 AVG referred to notices. Nauta has not objected to the amendment of the request. In the opinion of the Court of Appeal, the amendment does not conflict with the requirements of due process. The court will therefore do justice to the amended request.<br />
<br />
6.2<br />
<br />
As the most far-reaching defence, Nauta takes the position that the request should be rejected because [appellant] misuses his powers. To this end, Nauta argues that the information and access rights (in the GDPR) have been granted so that a data subject can ascertain whether his personal data are being processed correctly and lawfully and possibly to effect rectification, erasure or blocking, while [appellant] is not aware of this. to do. According to Nauta, [appellant] is only trying to obtain evidence with his request for the accusations he makes against the chairman and (former) employees of the House, and for his suspicion that Nauta (in the context of her alleged advice to the House) has acted unlawfully towards him. During the oral hearing on appeal, [appellant] confirmed that he may involve the information to be obtained in proceedings regarding the said allegations. In the opinion of the Court of Appeal, however, it has not become sufficiently plausible that this is the sole purpose for which [appellant] exercises his information and access rights. At the hearing of the Court of Appeal, [appellant] also noted that his aim is to find out which personal data about him has been processed by Nauta and whether this has been done lawfully, and that if it appears that Nauta acted unlawfully, he will review which AVG rights he can exercise to address that illegality. It cannot therefore be judged that [appellant] misused his authority by exercising it for a purpose other than that for which it was granted (as referred to in Section 3:13(2) of the Dutch Civil Code.<br />
<br />
6.3<br />
<br />
As a second 'preliminary' defence, Nauta argues that [appellant] is inadmissible in a number of his requests, or at least that those requests must be rejected, namely insofar as they relate to artt. 5, 13 and 14 Avg and insofar as [appellant] requests Nauta to report to the Dutch Data Protection Authority and to himself on the basis of artt. 33 and 34 Avg. In an assessment of this defense – which in law cannot be regarded as preliminary (or principal), which will be the reason why Nauta uses quotation marks – Nauta has no interest because the Court of Appeal is of the opinion on other grounds that the request of [appellant] must be dismissed. These grounds include the following.<br />
<br />
6.4<br />
<br />
The court sees reason to first apply Art. 23 GDPR and art. 41 UAvg to quote. Nauta is the controller within the meaning of these provisions. art. 23 Avg, entitled 'Restrictions', reads, in so far as relevant here, as follows:<br />
<br />
‘1. The scope of the obligations and rights referred to in Articles 12 to 22 and Article 34, as well as in Article 5 may, insofar as the provisions of those Articles correspond to the rights and obligations referred to in Articles 12 to 20 , are limited by provisions of Union or Member State law to which the controller or processor is subject, provided that such limitation does not affect the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society to ensure from:<br />
<br />
†<br />
<br />
(e) other important objectives of general interest of the Union or of a Member State, in particular an important economic or financial interest of the Union or of a Member State, including monetary, budgetary and fiscal matters, public health and social security;<br />
<br />
†<br />
<br />
(i) the protection of the data subject or of the rights and freedoms of others;'<br />
<br />
art. 41 UAvg, with the heading 'Exceptions to the rights of the data subject and the obligations of the controller', reads, insofar as relevant here, as follows:<br />
<br />
The controller may disapply the obligations and rights referred to in Articles 12 to 21 and Article 34 of the Regulation insofar as this is necessary and proportionate to ensure:<br />
<br />
†<br />
<br />
e. other important objectives of general interest of the European Union or of the Netherlands, in particular an important economic or financial interest of the European Union or of the Netherlands, including monetary, budgetary and tax matters, public health and social security;<br />
<br />
†<br />
<br />
i. the protection of the data subject or of the rights and freedoms of others;'<br />
<br />
6.5<br />
<br />
Insofar as it is further relevant here, artt. 10a and 11a of the Lawyers Act the following in:<br />
<br />
‘1. In the interest of proper administration of justice, the lawyer ensures the legal protection of his client. To this end, in the exercise of his profession, the lawyer is:<br />
<br />
†<br />
<br />
e. confidential counselor and observes confidentiality within the limits set by law and law',<br />
<br />
respectively<br />
<br />
‘1. Insofar as not provided otherwise by law, the advocate is obliged to observe secrecy with regard to everything he becomes aware of in the course of his professional practice. The same obligation applies to employees and staff of the lawyer, as well as other persons involved in the practice of the profession.'<br />
<br />
6.6<br />
<br />
In rejecting the application of the applicant, the court in the decision against which appeal considered and ruled the following:<br />
<br />
"3.5. It is rightly not in dispute between the parties that the right of inspection is not unlimited. In the GDPR and UAVG, this is expressed in exceptions to the obligations to provide certain information. Those exceptions include what ensues from the duty of confidentiality of lawyers. This is related to the function of the legal profession in a constitutional state such as the Netherlands. The far-reaching duty of confidentiality of lawyers is essential so that the legal profession can adequately fulfill its proper function in a constitutional state.<br />
<br />
3.6.<br />
<br />
The position of [appellant] that Article 23 GDPR does not apply to the<br />
<br />
duty of confidentiality cannot be followed. (…) [follows an abbreviated version of art. 23 paragraph 1, opening words and under i, AVG, art. 41 paragraph 1, opening words and under i, UAvg, art. 10a paragraph 1, opening words and under e, and art. 11a Lawyers Act; court] Nauta's duty of confidentiality constitutes a limitation that applies to the controller or processor, Nauta, as referred to in Article 23 GDPR. After all, observing the duty of confidentiality by the legal profession is a basic condition for the rule of law to function. A person who turns to a lawyer about a dispute with a third party must be able to rely on the fact that he/she can do so in freedom and that that lawyer will observe secrecy with regard to what is entrusted to him/her. In principle, this secrecy also extends to the question of whether someone has approached a particular lawyer and, if so, about what. This means that Nauta was not obliged to provide more information to [appellant] than she had done. The applicant's requests for further information must therefore be rejected.<br />
<br />
3.7.<br />
<br />
With regard to [appellant's] request to order Nauta the Authority<br />
<br />
Notifying personal data of breaches is relevant in that it cannot be established that breaches have occurred. This request will therefore be rejected. The request of [appellant] to order Nauta to notify him of infringements cannot be granted for the same reason.'<br />
<br />
6.7<br />
<br />
The court unites with these considerations and judgments and makes them its own. In doing so, the Court of Appeal understands the consideration that the right of inspection is not unlimited (para. 3.5) as meaning that the District Court does not only have the in art. 15 AVG has in mind, but also the in artt. 13 and 14 GDPR laid down obligations and rights. The by [appellant] against para. Complaints formulated in 3.5-3.7 are already inconsistent with this. In addition to this, the court also considers the following.<br />
<br />
6.8<br />
<br />
To the extent that [appellant's] request relates to the provisions referred to in art. 13 Avg, Nauta has argued that it has already provided this information to [appellant] (by means of her letter of 8 August 2019). [Appellant] has not disputed this. The court followed Nauta in this regard by stating in para. 3.4 of the contested decision to consider that Nauta takes the position that the provisions referred to in art. 13 AVG has already been provided to [appellant] (and that Nauta's professional secrecy precludes it from having to provide the information referred to in Articles 14 and 15 AVG), and in para. 4.6 to rule that Nauta was not obliged to provide more information to [appellant] than it had done. The appellant has not lodged a complaint against this, so that the appeal must be based on the correctness of this judgment.<br />
<br />
6.9<br />
<br />
Insofar as the request of [appellant] relates to the in art. 14 paragraphs 1 to 3 GDPR, Nauta has pointed out that art. 14, paragraph 5, opening words and under d, GDPR provides that paragraphs 1 to 4 of this provision do not apply 'if and insofar as the personal data must remain confidential on the basis of professional secrecy under Union or Member State law, including a statutory duty of confidentiality'. Art. 10a and 11a Advocatenwet entail such a (member state) statutory (statutory) duty of confidentiality for the advocate with regard to everything he becomes aware of in the course of his professional practice (and for employees and staff of the advocate as well as other persons involved in professional practice). The request is therefore inadmissible in that regard as well.<br />
<br />
6.10<br />
<br />
Insofar as the request of [appellant] relates to the matters referred to in art. 15 paragraph 1 of the AVG regulated right of inspection, Nauta has rightly argued that the duty of confidentiality for the lawyer also prevents this inspection via the provisions of paragraph 4 of art. 15 GDPR (“The right to obtain a copy referred to in paragraph 3 does not affect the rights and freedoms of others”). In this regard, Nauta argued (uncontested) that having to provide access would prejudice both its rights and freedoms to be able to practice its profession as a law firm and effectively safeguard the interests of its clients, as well as the rights and freedoms of the law firm. House (if the House were indeed a client of Nauta) to be able to freely turn to a lawyer and to be able to correspond with that lawyer and exchange information without a counterparty or a third party being able to see it.<br />
<br />
6.11<br />
<br />
It follows from the foregoing that artt. 14 and 15 Avg themselves contain limitations and that these limitations also lead to the rejection of [appellant]'s request, insofar as the request relates to the in artt. 14 and 15 AVG referred to obligations and rights.<br />
<br />
6.12<br />
<br />
With ground of ground 1, [appellant] takes the position that Nauta cannot successfully invoke its derived right of nondisclosure or derived duty of confidentiality if and insofar as the 'concerning secret holders' - the Court of Appeal understands: the lawyers referred to in ground 3 - do not have expressed themselves about their right of nondisclosure or confidentiality. This point of view, however, ignores that Nauta for the application of artt. 14, 15 and 23 GDPR and art. 41 UAvg must be equated with the lawyers working for it as a law firm responsible for the processing insofar as Nauta itself has an (own) duty of confidentiality. Ground 1 therefore fails.<br />
<br />
6.13<br />
<br />
Grounds 3 to 13 are suitable for joint handling. In essence, these complaints argue that Nauta is not entitled to a derived right of nondisclosure or a derived duty of confidentiality (cf. the conclusion in the notice of appeal, last paragraph under P, pp. 23-24). They therefore already fail what has been considered above with regard to ground 1. In addition, these complaints are based on the assumption (the presumption) that some lawyers working at Nauta have wrongly not treated documents on certain issues and procedures confidentially and that they have wrongly become known to other lawyers working at Nauta. Assuming that this assumption is correct – which is contradicted by Nauta – it does not entail that Nauta (or the lawyers and employees working for Nauta mentioned by [appellant]) cannot (can) not appeal in these proceedings to reject the request. ) comply with its (their) duty of confidentiality. That there is therefore no question of taking cognizance 'by virtue of his professional practice as such' within the meaning of Art. 11a Lawyers Act, is not readily apparent. The rules of conduct cited by [appellant] do not change this. Finally, his assertion that lawyers' right of nondisclosure relates solely to the confidentiality of communication between client and lawyer in the context of the right of defense in proceedings that may lead to the imposition of a sanction cannot help [appellant] either. because a right of nondisclosure (of Nauta) is not at issue here (but the duty of confidentiality) and because this statement is not supported by the law.<br />
<br />
6.14<br />
<br />
Ground 14 apparently builds on grounds of appeal 3 through 13 and must therefore share its fate.<br />
<br />
6.15<br />
<br />
In ground 15, [appellant] argues on various grounds that Art. 41 UAVg, art. 10 a paragraph 1, opening words and under e, and art. 11a Lawyers Act – partly in light of the Guidelines 10/2020 on restrictions under Article 23 GDPR – do not meet the requirements of art. 23 Avg lays down regulations under member state law with which the in artt. obligations and rights referred to in 12 to 22, 34 and 5 Avg are limited. The principle of the primacy of EU law means that these national legal provisions must therefore be disapplied, according to [appellant]. In the opinion of the Court of Appeal, however, it does not follow from the grounds put forward by [appellant] – which essentially entail his own interpretation of [appellant] – that these legal provisions (by the Dutch court) are not in accordance with the requirements of EU law (art. . 23 Avg) can be explained. The Court considers that one of the requirements of art. 23 Avg corresponding interpretation of these provisions (here) is possible. Ground 15 fails on this.<br />
<br />
6.16<br />
<br />
[appellant] further argues, stated briefly and succinctly, that the limitation of the AVG rights underlying his information requests and the request in these proceedings is not necessary in the circumstances outlined by him, or at least does not meet the requirements of proportionality and subsidiarity. The Court does not agree with [appellant] in this regard. After all, the District Court has considered (in ground 3.6) – with which the Court of Appeal has agreed – that observance of the duty of confidentiality by the legal profession is a basic condition for the functioning of the rule of law, that the person involved in a dispute turns to a lawyer with a third party, must be able to rely on the fact that he can do so in freedom and that that lawyer will observe secrecy with regard to what is entrusted to him/her. to a certain lawyer and, if so, about what, and all this entails that Nauta was not obliged to provide [appellant] with more information than she had done. This implies that in the circumstances of this case there is no violation of the requirements of necessity, proportionality and subsidiarity. Grounds 16 and 17 therefore fail.<br />
<br />
6.17<br />
<br />
Ground 18 also fails on the basis of what the District Court has ruled and with which the Court of Appeal has agreed. in row. After all, the court has ruled that the request to notify the Dutch Data Protection Authority and/or to [appellant] of infringements must be rejected because it cannot be established that infringements have taken place. That any breach of personal data as referred to in artt. 33 and 34 Avg cannot be established, it follows from the circumstance that Nauta's duty of confidentiality stands in the way of that determination.<br />
<br />
conclusion<br />
<br />
6.18<br />
<br />
It follows from the foregoing that the appeal is without purpose. The contested decision will be ratified. As the party to be found in the wrong, [appellant] will be ordered to pay the costs of the appeal proceedings. The salary of Nauta's lawyer will be estimated at €2,228 (two points, rate II (€1,114 per point)). Nauta has not requested a provisional declaration of enforceability (of the order to pay costs).<br />
<br />
The decision<br />
<br />
The Council:<br />
<br />
ratifies the decision of the Rotterdam District Court of 9 November 2020 given between the parties;<br />
<br />
orders [appellant] to pay the costs of the appeal proceedings, estimated on the part of Nauta to date at €772 in disbursements (court fees) and €2,228 in lawyer's salary.<br />
<br />
This decision was made by Mrs. H.J. van Kooten, R.S. van Coevorden and R.W. Polak, and was pronounced in open court on 14 December 2021 in the presence of the Registrar.<br />
<br />
1 i.a. Court of 's-Hertogenbosch 1 February 2018, ECLI:NL:GHSHE:2018:363, Court of The Hague 1 September 2015, ECLI:NL:GHDHA:2015:2332, and Hof Amsterdam 5 July 2011, ECLI:NL:GHAMS:2011 :BR3020.<br />
</pre></div>2A01:4F8:231:1DE2:0:0:1001:18https://gdprhub.eu/index.php?title=BGH_-_I_ZR_2/21&diff=25043BGH - I ZR 2/212022-03-30T14:34:42Z<p>2A01:4F8:231:1DE2:0:0:1001:18: /* Facts */</p>
<hr />
<div>{{COURTdecisionBOX<br />
<br />
|Jurisdiction=Germany<br />
|Court-BG-Color=<br />
|Courtlogo=Courts_logo1.png<br />
|Court_Abbrevation=BGH<br />
|Court_With_Country=BGH (Germany)<br />
<br />
|Case_Number_Name=I ZR 2/21<br />
|ECLI=<br />
<br />
|Original_Source_Name_1=BGH<br />
|Original_Source_Link_1=https://rewis.io/urteile/urteil/gjg-24-02-2022-i-zr-221/?q=dsgvo<br />
|Original_Source_Language_1=German<br />
|Original_Source_Language__Code_1=DE<br />
<br />
|Date_Decided=24.02.2022<br />
|Date_Published=<br />
|Year=2022<br />
<br />
|GDPR_Article_1=Article 6(1)(f) GDPR<br />
|GDPR_Article_Link_1=Article 6 GDPR#1f<br />
|GDPR_Article_2=Article 85(1) GDPR<br />
|GDPR_Article_Link_2=Article 85 GDPR#1<br />
|GDPR_Article_3=Article 85(2) GDPR<br />
|GDPR_Article_Link_3=Article 85 GDPR#2<br />
|GDPR_Article_4=Article 4(1) GDPR<br />
|GDPR_Article_Link_4=Article 4 GDPR#1<br />
<br />
<br />
<br />
|National_Law_Name_1=§ 22 KUG<br />
|National_Law_Link_1=https://www.gesetze-im-internet.de/kunsturhg/__22.html<br />
|National_Law_Name_2=§ 23 KUG<br />
|National_Law_Link_2=https://www.gesetze-im-internet.de/kunsturhg/__23.html<br />
<br />
|Party_Name_1=Tina Tuner<br />
|Party_Link_1=<br />
|Party_Name_2=Cofo Entertainment<br />
|Party_Link_2=https://www.tina-turner-story.com/<br />
|Party_Name_3=<br />
|Party_Link_3=<br />
|Party_Name_4=<br />
|Party_Link_4=<br />
|Party_Name_5=<br />
|Party_Link_5=<br />
<br />
|Appeal_From_Body=LG Köln (Germany)<br />
|Appeal_From_Case_Number_Name=I-15 U 37/20<br />
|Appeal_From_Status=<br />
|Appeal_From_Link=<br />
|Appeal_To_Body=<br />
|Appeal_To_Case_Number_Name=<br />
|Appeal_To_Status=<br />
|Appeal_To_Link=<br />
<br />
|Initial_Contributor=Sara Horvat<br />
|<br />
}}<br />
<br />
The German Supreme Court held that in a case concerning a Tina Turner lookalike for a tribute show, artistic freedom outweighed Tina Turner's personality rights in application of §§ 22, 23 Art Copyright Act (KUG) which requires the same balancing exercise as [[Article 6 GDPR|Article 6(1)(f) GDPR]].<br />
<br />
== English Summary ==<br />
<br />
=== Facts ===<br />
Tina Turner sued the organiser of a tribute show called "Simply The Best - Die Tina Tuner Story" for injunctive relief. In her opinion, the photo and the name of the show gave the impression that she would be standing on stage in person or supporting the show. <br />
<br />
The question was whether the double looked too much like the original and whether advertising posters with her photo and the title "Simply The Best - The Tina Turner Story" gave the impression that the superstar herself was involved.<br />
<br />
In the first instance, the Regional Court of Cologne (LG Köln) held that the personality rights of Ms. Turner outweighed the artistic rights of the organiser. The Higher Regional Court of Cologne (OLG Köln) overturned this decision and held that the artistic freedom (Kunstfreiheit) outweighed the personality rights of Ms. Turner, who appealed against this ruling.<br />
<br />
=== Holding ===<br />
The German Supreme Court held that a claim for injunctive relief with regard to the use of Ms. Turner's likeness is not applicable on the grounds of § 1004(1)(2) and § 823(2) BGB (Civil Code), §§ 22, 23 KUG (Art Copyright Act). <br />
<br />
While the Court agreed with the previous instances that the pictures of the plaintiff constituted personal data pursuant to Article 4(1) GDPR, it based its decision on §§ 22, 23 KUG. Under the KUG, it is permissible to take and publish photos of people without their consent if it is in the "higher interest of Art", i.e. if the artistic value of such creation outweighs the personal rights of the person pictured. <br />
<br />
However, the Court did not decide on the relationship between the KUG and the GDPR. It rather left open the question whether the use of the plaintiff's image for the defendant's posters was for "artistic purposes" within the meaning of [[Article 85 GDPR|Article 85(1) and (2) GDPR]] and whether the conditions set out therein for the adoption or continued application of national provisions (i.e. the KUG) were fulfilled with regard to the constellation of the case in dispute. The Court merely held that Ms. Turner could base a claim for injunctive relief neither on the KUG nor on the GDPR because the comprehensive weighing required by both [[Article 6 GDPR|Article 6(1)(f) GDPR]] and §§ 22, 23 KUG led to the same result. <br />
<br />
It was true that the defendant had used a likeness of the plaintiff on each of the posters in the sense of § 22 (1) KUG. The depiction of a double was also to be regarded as a portrait of a famous person if - as in the case at issue - the impression was given to a not inconsiderable part of the public that the double was the famous person himself. However, this was not clear from the posters as they did not make any statement on this and were not ambiguous in this respect.<br />
<br />
The use of the portrait was permissible pursuant to § 23(1)(4) of KUG since it had not been made at the request of Ms. Turner, its dissemination or display served a higher artistic interest and the act of dissemination did not infringe any legitimate interest of her within the meaning of § 23(2) KUG. The same resulted from § 23(1)(1) KUG.<br />
<br />
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== English Machine Translation of the Decision ==<br />
The decision below is a machine translation of the German original. Please refer to the German original for more details.<br />
<br />
<pre><br />
subject<br />
<br />
Tina Turner<br />
motto<br />
<br />
Tina Turner<br />
<br />
1. If a person is represented by another person, the representation is (only) to be regarded as a portrait of the person represented if the deceptively real impression is created that it is the person represented himself, as is the case with the use of a double or "look-alike" or a recreated famous scene or photograph (continuation of BGH, judgment of December 1, 1999 - I ZR 226/97, GRUR 2000, 715, 716 f. [juris para. 21] = WRP 2000, 754 - The Blue Angel and judgment of May 18, 2021 - VI ZR 441/19, GRUR 2021, 1222 paras. 22 to 27 with further references). It is sufficient if a not inconsiderable part of the audience believes that it is the person portrayed.<br />
<br />
2. In such a case, the person actually depicted, but not the person allegedly depicted, can refer to the fact that the portrait was made to order within the meaning of Section 23 (1) No. 4 KUG. Only between the person actually portrayed and the artist can a relationship of trust arise due to the circumstances of the creation of the image, which prevents the distribution or display of the portrait for a higher interest in art.<br />
<br />
3. The advertisement for a show in which songs by a celebrity singer are sung by a performer who looks remarkably like her, with a portrait of the performer that gives the deceptively real impression of being the celebrity singer herself, is generally of the artistic freedom covered. However, advertising for such a tribute show constitutes an unjustified encroachment on the asset component of the prominent original's general personality rights if the incorrect impression is given that the prominent original supports it or is even involved in it.<br />
<br />
tenor<br />
<br />
The appeal against the judgment of the 15th civil senate of the Cologne Higher Regional Court of December 17, 2020 is rejected at the expense of the plaintiff.<br />
<br />
By rights<br />
facts<br />
1<br />
<br />
The plaintiff, who goes by the stage name Tina Turner, is a world-famous singer. The defendant is the producer of the show "SIMPLY THE BEST - THE tina turner STORY", in which the singer DF appears and presents the plaintiff's greatest hits. The defendant advertised the show with posters depicting D.F. and using the plaintiff's (artist) name in the caption "THE tina turner STORY".<br />
<br />
2<br />
<br />
The plaintiff, who has not consented to the use of her likeness or name, believes that because of the resemblance between D.F. and herself, the viewer assumes that she herself appears on the posters and is involved in the show. After an unsuccessful warning, she applied for<br />
<br />
1. to order the defendant to refrain from<br />
<br />
a) to use and/or have used the name of the plaintiff "Tina Turner" for advertising material for the promotion of the show "SIMPLY THE BEST - the Tina Turner Story" if this happens as shown below<br />
<br />
Illustration<br />
<br />
b) to use and/or have used the image of the plaintiff for advertising material for the promotion of the show "SIMPLY THE BEST - the Tina Turner Story" if this happens as shown below<br />
<br />
[the above posters are displayed]<br />
<br />
2. alternatively, ordering the defendant to refrain from doing so, under threat of further specified administrative measures,<br />
<br />
a) to use and/or have used the name of the plaintiff "Tina Turner" for advertising material for the application of the show "SIMPLY THE BEST - the Tina Turner Story", if this happens as shown below, without at the same time an addition that excludes any possibility of confusion to add<br />
<br />
[the above posters are displayed]<br />
<br />
b) to use and/or allow the use of the image of the plaintiff "Tina Turner" for advertising material for the show "SIMPLY THE BEST - the Tina Turner Story", if this happens as shown below, without at the same time an addition that excludes any possibility of confusion to add<br />
<br />
[the posters reproduced above are displayed].<br />
<br />
3<br />
<br />
The regional court (LG Cologne, ZUM-RD 2020, 293) granted the action according to the main claims. The Court of Appeal (OLG Köln, ZUM-RD 2021, 293) amended the judgment of the Regional Court and dismissed the lawsuit. With the appeal allowed by the court of appeal, the rejection of which the defendant requests, the plaintiff strives for the restoration of the district court's judgment and pursues her auxiliary requests subordinately.<br />
Reasons for decision<br />
4<br />
<br />
A. The Court of Appeal denied the plaintiff's claim for injunctive relief against the use of her likeness and her name after the main and the auxiliary request and stated as a reason:<br />
<br />
5<br />
<br />
A claim for injunctive relief with regard to the use of the portrait does not follow from § 1004 Paragraph 1 Clause 2, § 823 Paragraph 2 BGB, §§ 22, 23 KUG. It is true that the defendant used a picture of the plaintiff within the meaning of § 22 sentence 1 KUG on each of the posters. The depiction of a double is also to be regarded as a portrait of a famous person if - as in the case at hand - the impression is given to a not inconsiderable part of the audience that the double is the famous person himself. However, the use of the portrait is appropriate § 23 para. 1 no. 4 KUG, since it was not made to order by the plaintiff, its distribution or display serves a higher interest of art and the act of dissemination does not represent a legitimate interest of the plaintiff within the meaning of § 23 para. 2 KUG get hurt. The same results from Section 23 Paragraph 1 No. 1 KUG. In any case, the plaintiff cannot base a claim for injunctive relief on data protection law either, because the comprehensive weighing of interests that is also required in this respect comes to the same result as the weighing according to §§ 22, 23 KUG.<br />
<br />
6<br />
<br />
The plaintiff is also not entitled to an injunctive relief according to § 12 sentence 1 case 2 BGB because of the use of her name on the posters. There are already fundamental doubts as to whether the provision is applicable at all and whether the plaintiff's name is "used". In any case, the defendant's interests took precedence over those of the plaintiff.<br />
<br />
7<br />
<br />
A claim for injunctive relief does not result from § 1004 Section 1 Clause 2, § 823 Section 1 BGB, Article 1 Section 1, Article 2 Section 1 GG because of a violation of the plaintiff's general right of personality. It is true that the defendant encroached on the financial components of the plaintiff's personality rights by using her name and likeness for advertising purposes. However, this use is not illegal. In the context of the weighing process, the interests of the defendant, who could invoke their artistic freedom under Art. 5 (3) GG with regard to the design of the posters, deserved priority over the interests of the plaintiff in a decision on the use of the likeness and name.<br />
<br />
8th<br />
<br />
The lawsuit was unsuccessful even with the auxiliary requests. Since the defendant was not prevented from using the posters in the contested form as advertising material for the show, it could not be legally obliged to provide them with an explanatory addendum.<br />
<br />
9<br />
<br />
B. The admissible (see B I) revision of the plaintiff is unsuccessful. The Court of Appeal rightly dismissed the main claims against the use of the plaintiff's portrait (see B II) and name (see B III). With regard to the auxiliary requests, the dismissal of the action also stands (see B IV).<br />
<br />
10<br />
<br />
I. The revision is permitted without restrictions. The ruling sentence of the appeal judgment contains no limitation on the appeal admission. The case law of the Federal Court of Justice recognizes that a restriction on the admission of an appeal can also result from the reasons for the decision. However, according to the principle of clarity of appeal, the parties must be able to recognize without a doubt which legal remedy is possible for them and under what conditions it is permissible. Merely stating the reason for the admission of the appeal is not enough to assume that the appeal is only admitted to a limited extent (st. Rspr.; cf. only BGH, judgment of July 22, 2021 - I ZR 194/20, GRUR 2021, 1534 20 = WRP 2021, 1556 - broadcasting liability). In the grounds for its decision, the court of appeal explained that the case was of fundamental importance with regard to the requirements for the application of Section 23 (1) No. 4 KUG to portraits of celebrities or their doubles, which have not only been also subject to artistic freedom. In doing so, it merely stated the reason for the approval for revision, without restricting the legal remedy. Contrary to the opinion of the reply to the appeal, the statements of the court of appeal do not indicate that the approval for appeal was limited to the applications for injunctive relief directed against the use of the plaintiff’s portrait (1 b and 2 b), because the court of appeal rejected the applications for injunctive relief directed against the use of the plaintiff’s name (1 a and 2 a) based on the same considerations.<br />
<br />
11<br />
<br />
II. The Court of Appeal rightly has a claim for injunctive relief for the plaintiff from § 1004 paragraph 1 sentence 2, § 823 paragraph 1 and 2 BGB, §§ 22, 23 KUG because of the use of her picture on the posters of the defendant according to the main application (application 1 b) no.<br />
<br />
12<br />
<br />
1. The Court of Appeal correctly assumed that the defendant interfered with the pecuniary attribution of the right to the plaintiff's own image.<br />
<br />
13<br />
<br />
a) The decision as to whether and in what way one's own image should be made available for advertising purposes is an essential - pecuniary - part of the right of personality. The unauthorized use of an image for advertising purposes therefore constitutes an encroachment on the pecuniary attribution of the right to one's own image and, like any unauthorized encroachment on the right to one's own image, justifies a claim for injunctive relief. The question of whether an image has been used for advertising, i.e. commercially, is assessed from the point of view of the average viewer. An encroachment on the pecuniary attribution of the right to one's own picture can be considered in particular if the use of the portrait exploits the advertising and image value of the person depicted, for example by marketing the person depicted as the opening credits for a press product. However, it is also sufficient, but leads to a lower weight of the interference, if there is mere attentional advertising, i.e. the viewer's attention is only to be drawn to the advertised product (cf. BGH, judgment of January 21, 2021 - I ZR 207/19 , GRUR 2021, 643 paras. 12 to 14 = WRP 2021, 484 - holiday lottery, with further reference).<br />
<br />
14<br />
<br />
b) The Court of Appeal rightly assumed that the posters in question show a portrait of the plaintiff.<br />
<br />
15<br />
<br />
aa) If a person is represented by another person - for example an actor - the protection of the image is based on the following principles:<br />
<br />
16<br />
<br />
In the case of an identifiable portrayal of a person by an actor, the protection of the image belongs to the actor, who in this case also remains "personal" in his role and thus remains recognizable as himself. The depiction is (only) to be regarded as a portrait of the depicted person if the deceptively real impression is created that it is the depicted person himself, as is the case, for example, with the use of a double or "look-alike" or a re-enactment of a famous scene or photography may be the case (cf. BGH, judgment of October 28, 1960 - I ZR 87/59, GRUR 1961, 138, 139 - Schölermann family; judgment of December 1, 1999 - I ZR 226/97, GRUR 2000, 715, 716 f. [juris para. 21] = WRP 2000, 754 - The Blue Angel; Judgment of May 18, 2021 - VI ZR 441/19, GRUR 2021, 1222 para. 22 to 27 with further reference). It is not important on which features of the external appearance this impression is based; it does not have to result from the facial features, but can also result from other details characterizing the person concerned (cf. BGH, GRUR 2000, 715, 716 f. [juris para. 21] - The Blue Angel). Adding the name of the person portrayed can also contribute to this (cf. BGH, judgment of June 9, 1965 - Ib ZR 126/63, GRUR 1966, 102 [juris para. 9] - playmate).<br />
<br />
17<br />
<br />
In such cases, it is sufficient for the assumption of a portrait of the person portrayed if a not inconsiderable part of the audience addressed believes that it is the person portrayed (cf. OLG Karlsruhe, AfP 1996, 282 [juris para. 29]; LG Düsseldorf, AfP 2002, 64, 65; Wenzel/von Strobl-Albeg, The right of word and picture reporting, 6th edition, chapter 7 marginal number 24; on the question of recognizability in other cases see BGH, judgment of 29 September 2020 - VI ZR 445/19, ZUM-RD 2020, 637 para. 18).<br />
<br />
18<br />
<br />
bb) The Court of Appeal proceeded from these principles and stated that the main actress of the show depicted on the posters is strongly reminiscent of the plaintiff at the time when she herself performed on stage, due to her hairstyle and the pose she adopted. It does not matter that the plaintiff was significantly older than the double pictured at the time the posters were published. It could also be an older photo of the plaintiff from the time when she herself was still performing on stage. In addition, the plaintiff's name is mentioned in the title of the poster. From the point of view of the average recipient, it is therefore a representation of the plaintiff.<br />
<br />
19<br />
<br />
cc) The objections in the reply to the appeal against this assessment do not get through.<br />
<br />
20<br />
<br />
(1) Contrary to the opinion of the reply to the appeal, the use of a doppelganger is just one, but not the only, way by which the deceptively real impression can be created that it is the person portrayed. What is required is an assessment based on the overall circumstances, which the Court of Appeal made without any legal errors. In addition, the Court of Appeal assumed that the leading actress of the show depicted on the posters resembled the plaintiff in the sense of a double.<br />
<br />
21<br />
<br />
(2) Also unsuccessfully, the reply to the appeal repeats the defendant's submission in the factual instances that the attacked posters - simply because of the reference "THE tina turner STORY" - clearly show for the addressed public that it is not the plaintiff that is shown, but the significantly younger actress of a show that the plaintiff is the subject of; evoking an association with her is not sufficient to justify the protection of the image. The conclusion drawn from the reply to the appeal is by no means compelling; Nor does it claim that the Court of Appeal overlooked relevant circumstances in its assessment.<br />
<br />
22<br />
<br />
(3) The additional argument put forward by the reply to the appeal that it must be allowed to advertise a permitted tribute show with a picture from the show is irrelevant for the classification of the picture as a portrait of the plaintiff. The plaintiff is thus not impermissibly granted a right to her own life image in the sense of a right not to become a role model for a work figure (cf. on this BVerfGE 119, 1, 27 f. [juris para. 82 to 85]; BGH, GRUR 2021, 1222 para. 27). The question of whether the defendant's show encroaches on the plaintiff's rights is not the subject of the lawsuit. There is also no inadmissible duplication of image protection (cf. BGH, GRUR 2021, 1222 para. 22). The Court of Appeal did not find that it was (also) a portrait of D.F.<br />
<br />
23<br />
<br />
c) Also correct and unchallenged by the appeal, the Court of Appeal assumed that the plaintiff is affected in the property law attribution of her right to her own picture. This follows from the fact that the defendant used the image of the prominent plaintiff for advertising purposes without her consent.<br />
<br />
24<br />
<br />
2. Ultimately, there are no concerns that the Court of Appeal assessed the legality of the defendant's actions according to the graduated protection concept of §§ 22, 23 KUG.<br />
<br />
25<br />
<br />
a) The right to one’s own picture according to §§ 22, 23 KUG, as a special statutory expression of the general right of personality, aims to protect the personality from becoming available to others against their will in the form of the image (cf. BGH, GRUR 2021, 1222 para. 21 with further references). According to this, portraits of a person may only be distributed or publicly displayed with the consent of the person depicted (§ 22 sentence 1 KUG). In the absence of such consent, the distribution and display of a portrait is only permissible if it can be positively assigned to one of the exceptional circumstances of Section 23 (1) KUG and legitimate interests of the person depicted within the meaning of Section 23 (2) KUG are not violated. The exceptions include portraits from the field of contemporary history (§ 23 Para. 1 No. 1 KUG) and portraits that are not made to order, provided that the distribution or display serves a higher interest of the art (§ 23 Para. 1 No. 4 KUG).<br />
<br />
26<br />
<br />
b) The graduated protection concept of §§ 22, 23 KUG is consistent both with constitutional requirements and with the case law of the European Court of Human Rights (cf. BGH, GRUR 2021, 643 para. 31 - Urlaublotto, with further references).<br />
<br />
27<br />
<br />
c) The question of whether §§ 22, 23 KUG under the application of Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data, on the free movement of data and on the repeal of Directive 95/46/EC (General Data Protection Regulation , GDPR) are still applicable to the use of a person's likeness for artistic purposes can remain open in the present case, because in the case at hand there is nothing to indicate that a weighing up against the standard of Art. 6 Para. 1 Subparagraph 1 Letter f GDPR leads to another result could lead.<br />
<br />
28<br />
<br />
aa) According to Art. 2 Para. 1, the General Data Protection Regulation applies to the fully or partially automated processing of personal data and to the non-automated processing of personal data that is stored or is to be stored in a file system. According to Art. 4 No. 1 GDPR, personal data is all information relating to an identified or identifiable natural person. According to Art. 4 No. 2 GDPR, processing includes any process carried out with or without the help of automated processes or any such series of processes in connection with personal data such as collecting, recording, organizing, arranging, storing, adapting or changing, reading, retrieval, use, disclosure by transmission, dissemination or any other form of provision, comparison or linking, restriction, erasure or destruction.<br />
<br />
29<br />
<br />
The consent of the data subject to the processing of their personal data for one or more specific purposes leads to the lawfulness of the processing in accordance with Art. 6 Para. 1 Subparagraph 1 Letter a GDPR. In addition, the processing of the data according to Art. 6 Para. 1 Subparagraph 1 Letter f GDPR is lawful if it is necessary to protect the legitimate interests of the person responsible or a third party, unless the interests or fundamental rights and freedoms of the data subject who require the protection of personal data prevail. Art. 85 para. 1 GDPR stipulates that the Member States shall harmonize the right to the protection of personal data in accordance with this regulation with the right to freedom of expression and information, including processing for journalistic purposes and for scientific, artistic or literary purposes, by law bring. If it is necessary for this, according to Art. 85 Para. 2 GDPR, they provide for exceptions to Chapter II, which also includes Art. 6 GDPR. According to Art. 85 Para. 3 GDPR, each Member State shall immediately notify the Commission of the legal provisions enacted on the basis of Art. 85 Para. 2 GDPR, including any subsequent amendments.<br />
<br />
30<br />
<br />
bb) The Court of Appeal affirmed the existence of personal data within the meaning of Art. 4 No. 1 GDPR. The revision does not attack this assessment. According to the case law of the Court of Justice of the European Union on the similarly worded predecessor provision in Art. 3 Para. 1 of Directive 95/46/EC on the protection of natural persons with regard to the processing of personal data and on the free movement of data, the image recorded by a camera falls under a person this term (cf. ECJ, judgment of February 14, 2019 - C-345/17, GRUR 2019, 760 para. 31 - Buivids, with further references). However, the case law of the Court of Justice of the European Union has not yet clarified the question of whether a person can also be regarded as identifiable if in reality another person is depicted, but by a not inconsiderable part of the public that person is held.<br />
<br />
31<br />
<br />
cc) The court of appeal did not make any determinations as to whether the defendant fulfilled one of the facts specified in Art. 4 No. 2 GDPR when using the disputed image. According to the case law of the Court of Justice of the European Union on the similarly worded predecessor provision in Art. 3 Para. 1 of Directive 95/46/EC, the (video) recording of a person on the memory of a camera constitutes automated processing of personal data (cf. ECJ, GRUR 2019, 760 para. 35 - Buivids, with further references). In addition, disclosure through the distribution of the image in the course of postering also leads to the scope of the General Data Protection Regulation (for the concept of disclosure through distribution see Herbst in Kühling/Buchner, DS-GVO BDSG, 3rd ed., Art. 4 DSGVO 31 f.; BeckOK.Datenschutzrecht/Schild, 38th edition [as of November 1, 2021], Art. 4 GDPR marginal 49 f. with further references).<br />
<br />
32<br />
<br />
dd) The Court of Appeal further stated that the plaintiff's claim for injunctive relief does not exist even if one assumes that the regulations in §§ 22, 23 KUG, but rather the data protection standard of Art. 6 Para. 1 Subparagraph 1 Letter f GDPR should be applied because the legislator outside the area of journalistic activity has not yet made use of the opening clause of Art. 85 Para. 2 GDPR have. In the absence of the plaintiff's consent, Article 6(1)(1)(f) GDPR also requires a comprehensive assessment of all conflicting fundamental rights positions of the plaintiff and the defendant. The result remains the same as under §§ 22, 23 KUG, especially since in the specific case no different scope of the fundamental rights of the Charter of Fundamental Rights of the European Union to be taken into account under Art. 51 (1) EU Charter of Fundamental Rights when applying the General Data Protection Regulation in relation to the national fundamental rights of the Basic Law, including the specifications from the European Convention on Human Rights to be taken into account in the interpretation. This assessment is free of legal errors.<br />
<br />
33<br />
<br />
(1) When applying regulations that have been completely standardized under Union law, the fundamental rights of the Charter of Fundamental Rights of the European Union are relevant due to the fundamental application priority of Union law, insofar as the fundamental rights protection guaranteed by them - as can also be assumed according to settled case law of the Federal Constitutional Court - is sufficiently effective (cf BVerfGE 152, 216 paragraphs 42 to 49 - right to be forgotten II). Complete standardization can be assumed for the matters covered by the General Data Protection Regulation (cf. BVerfGE 152, 216 para. 41 - right to be forgotten II; BGH, GRUR 2021, 643 para. 40 - Urlaublotto). In the event of a dispute - assuming the applicability of the General Data Protection Regulation - the plaintiff would have the fundamental rights to respect for private and family life from Article 7 of the EU Charter of Fundamental Rights and to the protection of personal data from Article 8 of the EU Charter of Fundamental Rights and on the part of the defendant to weigh up the fundamental rights to freedom of art from Art. 13 EU Charter of Fundamental Rights and additionally to entrepreneurial freedom from Art. 16 EU Charter of Fundamental Rights.<br />
<br />
34<br />
<br />
(2) Correctly and not challenged by the appeal, the Court of Appeal assumed that a weighing of interests to be carried out on the basis of Article 6(1)(1)(f) GDPR must lead to the same result as one based on Sections 22 and 23 KUG . The Court of Justice of the European Union has already stated, when examining the legality of data processing according to Directive 95/46/EC, that this requires a weighing of the respective conflicting rights and interests, in which the meaning of the rights of the data subject from Art. 7 and 8 EU Charter of Fundamental Rights must be taken into account (cf. ECJ, judgment of May 13, 2014 - C-131/12, GRUR 2014, 895 para. 74 = WRP 2014, 805 - Google Spain and Google). There is nothing to suggest that these principles should no longer apply when applying the General Data Protection Regulation. Neither in the Charter of Fundamental Rights of the European Union itself nor in the case law of the Court of Justice of the European Union are there any indications of a fundamental priority or subordination of one of the fundamental rights affected on one side over the fundamental rights to be abolished on the other side (on Art. 7 , 8 and 11 EU Charter of Fundamental Rights cf. BVerfGE 152, 216 para. 141 - right to be forgotten II; on Art. 7, 8, 11 and 16 EU Charter of Fundamental Rights cf. BGH, GRUR 2021, 643 para. 41 - holiday lottery).<br />
<br />
35<br />
<br />
ee) According to this, no decision is required as to whether the use of the plaintiff's portrait for the defendant's posters was for "artistic purposes" within the meaning of Art. 85 (1) and (2) GDPR and the requirements set out therein for the enactment or continued validity national regulations are met with regard to the constellation of the dispute (for § 23 Para. 1 No. 4 KUG negative Wenzel/von Strobl-Albeg loc. 7 para. 130; in the result affirmative BeckOK. Copyright/Engels, 33rd Edition [ as of January 15, 2022], Section 22 KUG, paragraphs 10a to 10e; on Section 23 (1) no. ZUM-RD 2020, 642 para. 10 mwN; Federal Court of Justice, ZUM-RD 2020, 637 para 1 GDPR contains an independent opening clause and Art. 85 Para . BeckOK.InfoMedienR/Cornils, 34th edition [as of February 1, 2021], Art. Wenzel/von Strobl-Albeg loc. 7 paragraphs 122 to 125, 127 to 128 and 130).<br />
<br />
36<br />
<br />
ff) A referral to the Court of Justice of the European Union pursuant to Art. 267 (3) TFEU is not necessary after all. In the event of a dispute, there is no question of relevance to the decision on the interpretation of Union law that has not already been clarified by the case law of the Court of Justice or cannot be answered unequivocally (on this standard cf. ECJ, judgment of October 6, 1982 - 283/81, ECR 1982, 3415 paragraph 21 = NJW 1983, 1257 - Cilfit and others; Judgment of 6 October 2021 - C-561/19, NJW 2021, 3303 paragraphs 33, 36 and 39 to 49 - Consorzio Italian Management and Catania Multiservizi).<br />
<br />
37<br />
<br />
3. There is no dispute between the parties that the plaintiff did not consent to the use of her likeness on the posters pursuant to § 22 sentence 1 KUG.<br />
<br />
38<br />
<br />
4. As a result, the Court of Appeal rightly considered the use of the plaintiff's picture on the defendant's posters to be permissible under Section 23 (1) No. 4 and (2) KUG.<br />
<br />
39<br />
<br />
a) Contrary to the opinion of the appeal, the plaintiff cannot successfully claim that § 23 para. 1 no. 4 KUG cannot intervene in favor of the defendant because the portrait in question was made to order.<br />
<br />
40<br />
<br />
aa) According to its wording, this exclusion does not contain any further requirements than the requirement that the production of the portrait must be based on an order.<br />
<br />
41<br />
<br />
bb) However, the justification for the fact of exclusion can be found in the legislative material on § 23 Paragraph 1 No. 4 KUG that the person depicted "in the event that a portrait is ordered ... [enters] a kind of trusting relationship with the artist that goes further Consideration of his interests is required" (RT-Verhandl. 11-II 1905/06 No. 30, p. 1540; cf. also LG Frankfurt, ZUM 2017, 772, 775 [juris para. 67]; Götting in Schricker/Loewenheim, copyright , 6th edition, § 23 KUG marginal number 101 with reference; Specht in Dreier/Schulze, UrhG, 7th edition, § 23 KUG marginal number 43; Wenzel/von Strobl-Albeg loc. cit. Chapter 8 marginal number 87).<br />
<br />
42<br />
<br />
(1) If the person depicted is also the customer of the portrait, he is usually in a contractual relationship with the artist, which justifies his confidence that the artist will only (further) use the portrait for his own artistic purposes with his consent.<br />
<br />
43<br />
<br />
(2) If the order is placed by a person other than the person depicted, there is usually no contractual relationship between the person depicted and the artist. However, this does not change the fact that the person depicted enters into a relationship of trust with the artist through their decision to make themselves available for the production of a portrait on the basis of an order - which does not necessarily come from themselves. In such a case, she can therefore expect that the artist will only use the portrait for his own interests, which are fundamentally protected by artistic freedom, with her consent.<br />
<br />
44<br />
<br />
(3) If the person actually depicted is not identical to the person who is (allegedly) depicted from the point of view of a not inconsiderable part of the audience addressed, according to the spirit and purpose of the provision, the person actually depicted, but not the supposedly depicted person, can be sued against the Objecting to the use of the image that it was made to order. Only between the person actually portrayed and the artist can a relationship of trust arise due to the circumstances of the creation of the image, which prevents its dissemination or display for a higher interest in art.<br />
<br />
45<br />
<br />
cc) According to these principles, the plaintiff cannot successfully claim that the portrait was made to order. Since the image actually shows D.F. and not the plaintiff, a relationship of trust may have arisen between D.F. and the artist, which restricts the application of the justification under Section 23 (1) No. 4 KUG.<br />
<br />
46<br />
<br />
b) As a result, the Court of Appeal correctly held that the use of the plaintiff's picture on the defendant's posters was justified under Section 23 Paragraph 1 No. 4 and Paragraph 2 KUG.<br />
<br />
47<br />
<br />
aa) The requirements of Section 23 Paragraph 1 No. 4 KUG are met if the distribution or display of the portrait serves a higher interest in art. A distribution of the portrait exists when (in particular) physical copies of the portrait are passed on, a display when it is made visible to the public (cf. Götting in Schricker/Loewenheim aaO § 22 KUG marginal number 36 f.; Fricke in Wandtke/Bullinger, copyright , 5th edition, Section 22 KUG marginal number 8 f.; Specht in Dreier/Schulze, loc. cit. Section 22 KUG, marginal number 9 to 10a; BeckOK /Meckel/Hentsch, copyright, 4th edition, Section 22 KUG, paragraphs 14 and 16; Wenzel/von Strobl-Albeg, loc. cit., Chapter 7, paragraph 139 f.). The dissemination or display of the portrait serves an interest in art if it is carried out for a purpose falling under Art. 5 Para. 3 Sentence 1 GG (cf. OLG Celle, ZUM 2011, 341, 345 [juris para. 32]) . The protection conferred by Article 5(3) sentence 1 GG does not depend on a specific artistic quality (cf. BVerfGE 79, 369, 377 [juris para. 18]; BGH, GRUR 2021, 1222 para. 31 with further references). It is not necessary for the image used to be a work protected by copyright (LG Berlin, ZUM-RD 2014, 105, 107 [juris para. 26]; LG Frankfurt, ZUM 2017, 772, 775 [juris para. 67]; LG Hamburg, NJW-RR 2017, 1392, 1392 f. [juris para. 32]); Götting in Schricker/Loewenheim aaO § 23 KUG marginal number 103; Fricke in Wandtke/Bullinger loc. cit. Section 23 KUG marginal number 41; Woodpecker in Dreier/Schulze loc. cit. § 23 KUG marginal number 43).<br />
<br />
48<br />
<br />
However, anyone who does not pursue a purpose that falls within the scope of protection of artistic freedom under Article 5 (3) sentence 1 of the Basic Law, but merely wants to satisfy his business interests by exploiting the likeness of another person for advertising purposes cannot invoke Section 23 (1) No. 4 KUG (cf. RT-Verhandl. 11-II 1905/06 No. 30, p. 1540; Götting in Schricker/Loewenheim loc. cit. § 23 KUG marginal number 102; Fricke in Wandtke/Bullinger loc / Schulze loc. cit. § 23 KUG marginal 43; on § 23 (1) no. However, it should be noted that the advertising for a work of art - just like the work of art itself - enjoys the protection of artistic freedom in accordance with Art. 5 (3) sentence 1 GG in its so-called sphere of action (cf. BVerfGE 77, 240, 251 [juris 31]; BGH, judgment of December 1, 1999 - I ZR 49/97, BGHZ 143, 214, 229 f. OLG Celle, ZUM 2011, 341, 345 [juris para. 32]; LG Hamburg, NJW-RR 2017, 1392, 1393 [juris para. 37 f.]; Specht in Dreier/Schulze aaO § 23 KUG para. 43; BeckOK .Copyright/Engels aaO § 23 KUG Rn. 21). A predominance of economic over artistic purposes does not exclude the scope of § 23 Para. 1 No. 4 KUG (but probably VerfGH Berlin, NJW-RR 2007, 1686, 1688 [juris marginal note 42] with further references; OLG Düsseldorf, AfP 2014, 454, 455 [juris para. 17]; LG Düsseldorf, judgment of November 28, 2012 - 12 O 545/11, juris para. 28; Engels in Möhring/Nicolini, copyright, 4th edition, § 23 KUG para. 21 ; BeckOK.Copyright/Engels aaO § 23 KUG marginal number 21; Wenzel/von Strobl-Albeg aaO chapter 8 marginal number 89 f.), but must be taken into account when weighing interests.<br />
<br />
49<br />
<br />
If the scope of § 23 Para. 1 No. 4 KUG is open, the assessment of whether the distribution or display of the plaintiff's portrait serves a higher (i.e. overriding) interest in art requires a weighing - which must be fully examined under revision law - between the The plaintiff's interest in protecting her personality and the interest perceived by the defendant in marketing a work of art that she is responsible for. The examination is to be based on a normative standard that takes sufficient account of the conflicting interests (on Section 23 (1) No. 1 KUG cf. BGH, judgment of November 22, 2011 - VI ZR 26/11, NJW 2012, 763 para 24; BGH, GRUR 2021, 643 para. 27 - Urlaubslotto, with further references; cf. also BVerfG, NJW 2018, 1744 paras. 18 to 22; BGH, GRUR 2021, 1222 para. 34; OLG Celle, ZUM 2011, 341, 345 [juris para. 32]; LG Düsseldorf, judgment of November 28, 2012 - 12 O 545/11, juris para. 28; OLG Düsseldorf, AfP 2014, 454, 455 [juris para. 17]; LG Berlin, AfP 2015 , 177, 170 [juris paras. 30 to 40]; LG Frankfurt, ZUM 2017, 772, 775 [juris para. 67]; LG Hamburg, NJW-RR 2017, 1392, 1393 [juris para. 39 f.]; LG Darmstadt, CR 2020, 47, 48 [juris para. 23 f.]; LG Berlin, AfP 2020, 264, 266 f. [juris para. 52 to 56]; Dreyer in Dreyer/Kotthoff/Meckel/Hentsch loc paragraph 56).<br />
<br />
50<br />
<br />
A legitimate interest of the person depicted within the meaning of Section 23 (2) KUG is violated if the image has an inherent content of infringement that has not yet been taken into account in the assessment according to Section 23 (1) No. 4 KUG, for example due to the way in which it was obtained or Presentation (cf. BGH, judgment of March 6, 2007 - VI ZR 51/06, GRUR 2007, 527 para. 33; Judgment of March 10, 2009 - VI ZR 261/07, GRUR 2009, 584 para. 15; BGH, NJW 2012, 763 para. 30; BGH, judgment of September 29, 2020 - VI ZR 449/19, GRUR 2021, 106 para. 27).<br />
<br />
51<br />
<br />
bb) Insofar as the use of a portrait coincides with a verbal expression, the latter must also be included in the examination of the question of whether the personality rights of the person depicted are being violated (cf. BGH, judgment of October 28, 2008 - VI ZR 307/07, BGHZ 178, 213 para. 19 mwN). For this purpose, the objective meaning of the statement must be determined from the point of view of an unbiased and reasonable average audience (cf. BVerfGE 114, 339, 348 [juris para. 31]; BVerfG, decision of November 11, 2021 - 1 BvR 11/20, juris para 17; BGH, judgment of April 27, 2021 - VI ZR 166/19, GRUR 2021, 1096 para. 11 with further references). The interpretation of the meaning is subject to full review by the Court of Appeal (cf. BGH, GRUR 2021, 1096 para. 11 with further references). The starting point is the wording of the statement, which, however, cannot definitively define the meaning. In addition, the overall context in which the statement was made must be taken into account. Distant interpretations are to be discarded. If the meaning is clear based on this standard, it is to be used as a basis for further examination. However, if it is shown that an unbiased and understanding public perceives the statement as ambiguous or if significant parts of the public understand the content differently, further examination must assume that the content is ambiguous (cf. BVerfGE 114, 339, 348 [juris para. 31 ]; BVerfG, decision of November 11, 2021 - 1 BvR 11/20, juris para. 17; BGH, GRUR 2021, 1096 para. 11 with further references). On the other hand, statements that appear ambiguous to such an extent that they are not understood as an independent assertion of a specific state of affairs, but are readily recognized as factually incomplete and in need of supplementation are missing, on the other hand, in the case of statements, particularly in the case of slogans and keyword-like statements (cf. BVerfGK 18, 33, 40 para. 23; BGH, judgment of March 11, 2008 - VI ZR 7/07, NJW 2008, 2110 para. 14; judgment of January 26, 2021 - VI ZR 437/ 19, GRUR 2021, 875 para. 23).<br />
<br />
52<br />
<br />
cc) The Court of Appeal assumed that the portrait served a higher interest in art. The show presented by the defendant and thus also the posters as advertising material fell within the scope of protection of artistic freedom according to Art. 5 Para. 3 GG. The fact that the show cannot be classified as an artistically high-quality musical with the staging of a storyline does not conflict with the character as a work of art, but ultimately consists only of a series of songs by the plaintiff, which are sometimes interrupted by short text passages, but without a stringent presentation of the plaintiff's life. The defendant's show as such is not subject to any competition law or copyright injunctive relief by the plaintiff. It is true that anyone who does not primarily pursue artistic purposes by exploiting the likenesses of another person, but merely wants to satisfy his business interests with regard to advertising purposes, cannot invoke the exceptional provisions of Section 23 (1) No. 4 KUG. However, that is not the case here. The defendants' posters served to draw the public's attention to a show about the life of the plaintiff, in which the plaintiff's songs were performed. There is neither an image transfer nor an attention-grabbing with regard to a "foreign" product, but rather an accurate description of the content of the show.<br />
<br />
53<br />
<br />
The publication of the plaintiff's picture on the posters would not violate her legitimate interests within the meaning of Section 23 (2) KUG. In the context of the consideration, the artistic freedom of the defendant takes precedence over the general right of personality of the plaintiff in the form of her right to her own picture. Only the social sphere and not the private sphere of the plaintiff is affected, because she has performed the songs of the show publicly during her professional life and it is in a purely economic interest to exploit her popularity financially according to her own ideas.<br />
<br />
54<br />
<br />
The posters did not contain any untrue statements about their involvement in the show. It is undisputed that there is no express reference to this; Rather, it is clear to the average recipient through the phrase "THE tina turner STORY" that the plaintiff's story is being told in the show "SIMPLY THE BEST". The unavoidable impression of the plaintiff's participation in the show is also not given. It is unlikely that a recipient, based on the appearance of the posters, would assume that the plaintiff, who was over 80 at the time the posters were published, was personally present or even assumed that she had indisputably ended her active career more than ten years ago. The average recipient does not assume that she will appear on the defendant's show as part of a so-called comeback. Such a return, which would be a sensation in music circles, would in no case be announced by posters such as the one at issue, which made no mention of it at all, given the applicant's worldwide fame. The average viewer of the poster thus gets the impression that a singer who looks similar to the younger plaintiff is appearing in the defendant's show. Nothing else follows from the use of the plaintiff's name in the phrase "THE tina turner STORY". From the point of view of the average recipient, it is merely a synopsis of the defendant's product.<br />
<br />
55<br />
<br />
The unavoidable impression is also not given that the plaintiff supports the show and thereby gives it a special authenticity. It is doubtful that an average recipient would give any further thought to whether the show was being carried out with the plaintiff's consent or support. Even if this is the case in individual cases, it does not necessarily follow that he assumes that consent will be granted; it is also possible that he does not consider this to be necessary.<br />
<br />
56<br />
<br />
As a result, this assessment stands up to legal scrutiny.<br />
<br />
57<br />
<br />
dd) Contrary to what the appeal on the law says, the application of Section 23 (1) No. 4 KUG does not conflict with the fact that the defendant used a portrait of the plaintiff to advertise another art form - in this case a tribute show.<br />
<br />
58<br />
<br />
(1) The wording of the provision, which refers to whether the dissemination or display of the portrait - not the portrait itself (cf. Specht in Dreier/Schulze loc use of the image for another work of art without further ado. It also doesn't matter whether the other work of art is by the same artist who created the portrait. Against the background of the broad scope of protection of artistic freedom under Art. 5 (3) sentence 1 GG described above (cf. paras. 47 f.), the advertising of the other work of art is also covered by the scope of the provision. This view is not contradicted by the fact that the Senate did not (also) apply this provision in its "Marlene Dietrich" decision, but only applied Section 23 (1) No. 1 KUG. In this case, there was no connection between the advertised products and the musical that was recognizable to third parties, so that artistic freedom was not relevant (cf. BGHZ 143, 214, 229 f. [juris para. 74]).<br />
<br />
59<br />
<br />
(2) Although the Court of Appeal initially raised the question of whether the portrait itself serves a higher interest in art, in its further explanations it focused on the exploitation and publication of the portrait. In essence, it has thus at least affirmed the display of the portrait. The revision raises no objections to this; Legal errors are not evident in this respect either. There is also no doubt that the defendant's show falls within the scope of protection of artistic freedom.<br />
<br />
60<br />
<br />
ee) The appeal is also not successful because the Court of Appeal did not already carry out the necessary balancing of interests within the framework of § 23 Para. 1 No. 4 KUG, but only during the examination required under § 23 Para Distribution or display of the image violates a legitimate interest of the person depicted. The decisive factor is whether the court of appeal on both sides included all aspects to be considered in the weighing of interests and weighted them without making any legal errors.<br />
<br />
61<br />
<br />
ff) With the complaint that the Court of Appeal incorrectly referred to whether the defendant with the posters for her show created the undeniable impression of the plaintiff's participation or support, the appeal also fails. This does not require a decision as to whether this standard developed for the right of expression can be transferred to the constellation of the dispute. It can also remain open whether, in view of the overall effect of the posters, one can assume a coherent statement of facts that is meaningful in itself. Irrespective of this, the Court of Appeal came to the correct conclusion that the posters in any case did not contain any untrue statements of fact.<br />
<br />
62<br />
<br />
(1) The Court of Appeal assumed that the express assertion that the plaintiff in the appear in the defendant's advertised show or take part in it in any other way. The Court of Appeal did not explicitly state that the posters also did not contain the express assertion that the plaintiff had consented to the performance of the show or supported it, but it also denied the substance of the matter. This assessment is correct and is not challenged by the revision.<br />
<br />
63<br />
<br />
(2) The posters also do not contain any ambiguous statements.<br />
<br />
64<br />
<br />
The Court of Appeal ruled out the possibility that a recipient would assume that the plaintiff was participating in the defendant's show based on the appearance of the posters. The reason given was that the plaintiff was over 80 years old and that her career officially ended more than ten years ago, and that a comeback by the plaintiff would be announced in a different form and would also take place in larger halls. The statement of the plaintiff's name was related solely to the content of the show by the court of appeal; at best, the impression arises that a singer who looks similar to the younger plaintiff is appearing in a show in which "the Tina Turner story" is being told. There is no objection to this assessment. Contrary to the opinion of the appeal, it does not contradict the previous finding of the court of appeal that the average recipient sees the picture on the posters as a representation of the plaintiff. These are different test items. The Court of Appeal first checked whether there was a picture of the plaintiff and then determined the message content of the posters. A show about the songs and life of the plaintiff can be advertised with a likeness of the plaintiff even if she does not appear on the show herself.<br />
<br />
65<br />
<br />
The posters are also not ambiguous because a significant part of the audience addressed takes the information from them that the plaintiff supports the defendant's show, for example by agreeing to its performance. The Court of Appeal did not explicitly examine this question. However, it has already considered it doubtful that an average recipient would give it any further thought at all; even if this is the case in individual cases, it is possible that he does not consider the plaintiff's consent to be necessary. There is no objection to this assessment. According to the overall effect of their image and word components, the posters do not contain any statement as to whether the plaintiff consented to the defendant's show. In order to get such an impression, the recipients would have to think about a connection between the plaintiff and the defendant's show, detached from the content of the posters. Neither the findings of the Court of Appeal nor other circumstances suggest that a significant proportion of the recipients would have had a misconception about this - also taking into account their possible previous knowledge about the plaintiff. The fact that there is a musical authorized by the plaintiff does not change this, which is emphasized by the appeal. The plaintiff has not substantiated the notoriety of this musical; Nor is it otherwise apparent that there would have been any significant confusion with the defendant's show.<br />
<br />
66<br />
<br />
(3) The Court of Appeal also applied the standard applicable in the right to utterance for hidden ("between the lines") assertions, according to which it must be examined whether an additional statement of one's own contained in the interplay of the open statements imposes itself on the reader as an irrefutable conclusion (cf. BVerfGK 2, 325, 238 [juris para. 16]; BVerfG, NJW 2018, 1596 para. 22; BGH, judgment of July 8, 1980 - VI ZR 159/78, BGHZ 78, 9, 14 [juris para 41]; Judgment of June 28, 1994 - VI ZR 273/93, VersR 1994, 1123, 1124 [juris para. 19]; Judgment of July 2, 2019 - VI ZR 494/17, AfP 2019, 434 para. 30 With further references; BGH, GRUR 2021, 1096 para. 12).<br />
<br />
67<br />
<br />
It can remain open whether these principles also apply to the assessment of poster advertising with only a few verbal elements for an event protected by artistic freedom. In view of the few open statements contained on the posters, which are essentially limited to an illustration and the statement "SIMPLY THE BEST - THE tina turner STORY", the assumption of a concealed factual claim in the case of a dispute is far from correct. The judgment of the Court of Appeal therefore proves to be correct in the final analysis. There is also no need to refer the matter back to the Court of Appeal in order to make further determinations as to the effect of the posters, because the Senate can determine their information content independently.<br />
<br />
68<br />
<br />
gg) The encroachment on the financial component of the plaintiff's right to her own image is also not illegal because of an image transfer from the plaintiff to the defendant's product.<br />
<br />
69<br />
<br />
The use of a portrait of the plaintiff with her name ("THE tina turner STORY") increases the audience's attention to the defendant's show compared to an announcement without a depiction of a person who looks deceptively similar to the plaintiff and even more so without naming the plaintiff's name . In addition, an image transfer takes place insofar as the show is also associated with the songs and the life of the world-famous plaintiff by parts of the audience who do not already have such an association through the use of the plaintiff's song title "Simply the best". In this sense, the depiction of a person who looks deceptively similar to the plaintiff is also suitable for giving or strengthening the impression of the authenticity of the show advertised.<br />
<br />
70<br />
<br />
However, the defendant's show, which is protected by artistic freedom, is designed in a fundamentally permissible manner to achieve such an effect. In addition, the selection of a suitable singer is based on the defendant's own performance. Therefore, advertising a show in which songs by a celebrity singer are sung by a performer who looks deceptively like her, with a portrait of the performer that gives the deceptively real impression of being the celebrity singer herself, is fundamentally of artistic freedom covered. An unjustified encroachment on the asset component of the prominent original's general personality rights would only be associated with advertising for such a tribute show if - as is not the case here - the incorrect impression was given that the prominent original supported it or even had an effect on it with. This applies regardless of the classification of the show to be assessed in the dispute as a musical, which - regardless of the use of the term on one of the posters - is not the subject of the legal dispute. The plaintiff does not claim that the contents of the show are illegal and it is also not apparent.<br />
<br />
71<br />
<br />
hh) The appeal on the law does not object to an additional infringement content to be taken into account under Section 23 (2) KUG; there are no indications of this either.<br />
<br />
72<br />
<br />
c) Due to the justification already occurring according to § 23 Section 1 No. 4 and Section 2 KUG, no decision is required as to whether the image used is also a portrait from the field of contemporary history, whose distribution and display according to § 23 Para. 1 No. 1 and Para. 2 KUG is permitted.<br />
<br />
73<br />
<br />
III. The Court of Appeal also rightly has a claim for injunctive relief because of the use of the plaintiff's name on the defendant's posters according to the plaintiff's main application (application 1 a) from § 1004 para. 1 sentence 2, § 823 para. 1 BGB, Art. 1 para 1, Article 2 Paragraph 1 GG and § 12 sentence 2 BGB negative.<br />
<br />
74<br />
<br />
1. The Court of Appeal stated that in the dispute there was no unjustified presumption of name according to Section 12 Clause 1 Case 2 BGB. There are fundamental doubts as to whether the provision is applicable at all. In essence, the plaintiff is not opposed to the assumption of a name, but to the use of her name for advertising purposes. In addition, there are doubts as to whether the use of the phrase "THE tina turner STORY" constitutes use of the plaintiff's name, because the defendant - as becomes clear from the addition "STORY" - merely refers to the content of the event it is advertising. In any case, the defendant's interests took precedence over those of the plaintiff. In particular, the recipients were not deceived by using the name within the phrase "THE tina turner STORY". The naming is primarily a summary of the "story" that the defendant is performing with songs by the plaintiff.<br />
<br />
75<br />
<br />
There is an encroachment on the financial component of the plaintiff's general right of personality. By naming her name on the poster, the defendant had infringed on the plaintiff's right to decide on the use of her name for advertising purposes. However, this encroachment is not unlawful because the interests of the defendant, who can invoke her artistic freedom, deserve priority over the interests of the plaintiff in a decision on the use of her name.<br />
<br />
76<br />
<br />
This assessment stands up to legal scrutiny.<br />
<br />
77<br />
<br />
2. The Court of Appeal correctly denied any use of the name within the meaning of § 12 Clause 1 Case 2 BGB.<br />
<br />
78<br />
<br />
a) If the interests of the entitled person are violated because another person uses the same name without authorization, the entitled person can demand a cease-and-desist from the other person according to § 12 sentence 1 case 2, sentence 2 BGB if further impairments are to be feared. The name protection also extends to an artist name of the person addressed (cf. BGH, judgment of March 18, 1959 - IV ZR 182/58, BGHZ 30, 7, 9 [juris para. 9]; judgment of October 5 2006 - I ZR 277/03, BGHZ 169, 193 para. 10 - kinski-klaus.de; Wenzel/Burkhardt/Peifer loc.cit. chapter 10 para. 40). An unjustified presumption of name according to § 12 sentence 1 case 2 BGB exists if a third party uses the same name without authorization, resulting in confusion and interests of the bearer of the name that are worthy of protection are violated (cf. BGH, judgment of September 28, 2011 - I ZR 188/ 09, GRUR 2012, 534 para. 8 = WRP 2012, 1271 - Landgut Borsig; Judgment of December 10, 2015 - I ZR 177/14, GRUR 2016, 749 para. 15 = WRP 2016, 877 - Landgut A. Borsig). The use of a third party's name within the meaning of § 12 sentence 1 case 2 BGB also exists if the third party attaches the name of the entitled person to himself as a company name, as an establishment designation or as another designation of a company or designates someone else with the name in question. The fact that descriptive suffixes are added to the name does not prevent the use of the same name. The traffic does not pay attention to these descriptive additions, but to the distinctive name (cf. BGH, GRUR 2012, 534 para. 11 - Landgut Borsig; GRUR 2016, 749 para. 19 - Landgut A. Borsig).<br />
<br />
79<br />
<br />
However, not every use of someone else's name can be regarded as "use" within the meaning of Section 12 of the German Civil Code. The purpose of the provision is solely to protect the name in its function as a means of identifying the person who bears it. For this reason, only uses that are likely to cause confusion about the name are prohibited. For this purpose, a use of the name by a third party as a name or a trademark as well as a use by which the bearer of the name is associated with certain facilities, goods or products with which he has nothing to do can be considered. For this it is sufficient that the wrong impression can arise in traffic that the bearer of the name has granted the user the right to use the name accordingly (BGH, GRUR 2012, 534 para. 12 - Landgut Borsig; GRUR 2016, 749 para. 24 - Landgut A .Bursig).<br />
<br />
80<br />
<br />
The concept of interest within the meaning of Section 12 BGB is broad and, outside of business transactions, not only includes a financial or business interest, but any interest of the bearer of the name, including a purely personal or immaterial and even a mere affective interest. In the area of the civil name, the interest of the bearer of the name is enough not to be confused with other people or to be related. In contrast, the unauthorized person cannot usually refer to matters worthy of protection that would have to be taken into account in his favour, so that the unauthorized use of the name already indicates a violation of interests (cf. BGH, GRUR 2012, 534 para. 43 and 45 - Landgut Borsig; GRUR 2016 , 749 para. 32 f. - Landgut A. Borsig).<br />
<br />
81<br />
<br />
b) According to these principles, the defendant did not use the name of the plaintiff within the meaning of § 12 sentence 1 case 2 BGB.<br />
<br />
82<br />
<br />
aa) The plaintiff assumes, as evidenced by her applications, that the title of the show is "SIMPLY THE BEST - THE tina turner STORY" and that the plaintiff's (artist) name is part of this title. According to this - at least when looking at the graphically separate (sub)title "DIE tina turner STORY" independently - the plaintiff's name would have been used insofar as this would give the incorrect impression of her participation in the show (on the use of a name as a work title cf . Wenzel/Burkhardt/Peifer, loc. cit., Chapter 10, paragraph 45 with further references; for use as a product designation, see MünchKomm.BGB/Säcker, 9th edition, § 12, paragraphs 116 to 118). The other components "THE ... STORY" merely represent a descriptive addition and do not preclude the use of the name.<br />
<br />
83<br />
<br />
bb) According to the findings of the Court of Appeal, which are free of legal errors and not challenged by the appeal, the title of the defendant's show is "SIMPLY THE BEST", while the addition "THE tina turner STORY" is an accurate description of the content of the show. According to this, there is attribution that does not fall within the scope of § 12 sentence 1 case 2 BGB.<br />
<br />
84<br />
<br />
3. The judgment of the Court of Appeal that the plaintiff is not entitled to an injunctive relief against the defendant because of an unjustified interference with the asset value of her right to her own name (Art. 1 Para. 1, Art. 2 Para. 1 GG) is free of legal errors.<br />
<br />
85<br />
<br />
a) Outside the scope of § 12 BGB, the use of a person's name in the non-material (cf. BGHZ 143, 214, 218 f. [juris para. 49] - Marlene Dietrich) and - in the case of use for commercial purposes - in interfere with the financial component of the general right of personality according to Art. 1 Para. 1, Art. 2 Para. 1 GG in the expression of the right to one's own name. The general right of personality supplements the existing simple legal regulations (cf. BGHZ 30, 7, 11 [juris para. 15]; on §§ 22, 23 KUG cf. also BGH, judgment of October 13, 2015 - VI ZR 271/14, BGHZ 207, 163 para. 15). Even in the area of application of the right to a name as part of the general right of personality, the legality of an encroachment must be assessed on the basis of a comprehensive weighing of goods and interests, taking into account the legal positions of both sides (cf. BGHZ 143, 214, 219 f. and 230 [juris paras. 51 and 75 ] - Marlene Dietrich, mwN; BGH, judgment of June 5, 2008 - I ZR 96/07, GRUR 2008, 1124 para. 12 and 15 = WRP 2008, 1524 - crumpled cigarette packet; judgment of June 5, 2008 - I ZR 223 /05, WRP 2008, 1567 para. 13 f.; BGH, GRUR 2021, 643 para. 67 - holiday lottery).<br />
<br />
86<br />
<br />
b) The Court of Appeal proceeded from these principles and, in order to weigh up the interests of the plaintiff's right to her own name, referred to his explanations when weighing up the interests of the right to her own image. This is not objectionable because the Court of Appeal already focused on the overall effect of the posters objected to by the plaintiff, in which the use of a picture coincides with the attribution of a name, when assessing the protection of the image. It is not apparent and is not asserted either by the appeal or by the response to the appeal that other aspects should be included in a weighing of interests between the plaintiff's right to its own name and artistic freedom and - additionally - the entrepreneurial freedom of the defendant or a change in the weighting of the points of view would have to be made.<br />
<br />
87<br />
<br />
IV. As a result, the Court of Appeal rightly dismissed the action also after the auxiliary requests (Motions 2 a and 2 b). The plaintiff lacks the need for legal protection for these applications.<br />
<br />
88<br />
<br />
1. The lack of a need for legal protection represents a procedural defect that must be taken into account ex officio. The question of whether there is a legally protected interest in using a court must therefore also be examined in the appeal instance, regardless of whether the defendant has raised a corresponding complaint (cf. BGH, judgment of April 23, 2020 - I ZR 85/19, GRUR 2020, 886 para. 19 = WRP 2020, 1017 - price change regulation, with further reference).<br />
<br />
89<br />
<br />
2. The plaintiff lacks the need for legal protection for the auxiliary requests because the addition of the words "without at the same time adding an addition that excludes any possibility of confusion" does not lead to a change in content compared to the main requests.<br />
<br />
90<br />
<br />
a) Exceptions do not need to be included in the complaint if this alone describes the specific form of infringement. It is not up to the plaintiff to point out to the defendant what he is allowed to do (cf. BGH, judgment of February 11, 2021 - I ZR 227/19, GRUR 2021, 758 para. 18 = WRP 2021, 610 - legal advice from an architect ). However, an over-determination that does not observe this principle is fundamentally harmless - especially with regard to the principle of certainty (cf. BGH, judgment of February 2, 2012 - I ZR 81/10, GRUR 2012, 945 para. 24 f. = WRP 2012, 1222 - Tribenuronmethyl; Judgment of December 12, 2019 - I ZR 173/16, GRUR 2020, 401 para. 13 = WRP 2020, 465 - ÖKO-Test I).<br />
<br />
91<br />
<br />
b) The phrase "without at the same time adding an addition that excludes any possibility of confusion" in the plaintiff's auxiliary requests represents such an overdetermination. In combination with the main requests, however, the plaintiff lacks the need for legal protection for the auxiliary requests. If the inner-procedural condition under which the auxiliary requests are made occurs because the main requests are unsuccessful, they cannot be successful either, because they do not represent an aliud or minus to the main requests, but are identical to them in terms of content.<br />
<br />
92<br />
<br />
C. Thereafter, the revision is to be rejected with the consequences of costs from § 97 Para. 1 ZPO.<br />
</pre></div>2A01:4F8:231:1DE2:0:0:1001:18https://gdprhub.eu/index.php?title=BGH_-_I_ZR_2/21&diff=25041BGH - I ZR 2/212022-03-30T14:33:17Z<p>2A01:4F8:231:1DE2:0:0:1001:18: /* English Summary */</p>
<hr />
<div>{{COURTdecisionBOX<br />
<br />
|Jurisdiction=Germany<br />
|Court-BG-Color=<br />
|Courtlogo=Courts_logo1.png<br />
|Court_Abbrevation=BGH<br />
|Court_With_Country=BGH (Germany)<br />
<br />
|Case_Number_Name=I ZR 2/21<br />
|ECLI=<br />
<br />
|Original_Source_Name_1=BGH<br />
|Original_Source_Link_1=https://rewis.io/urteile/urteil/gjg-24-02-2022-i-zr-221/?q=dsgvo<br />
|Original_Source_Language_1=German<br />
|Original_Source_Language__Code_1=DE<br />
<br />
|Date_Decided=24.02.2022<br />
|Date_Published=<br />
|Year=2022<br />
<br />
|GDPR_Article_1=Article 6(1)(f) GDPR<br />
|GDPR_Article_Link_1=Article 6 GDPR#1f<br />
|GDPR_Article_2=Article 85(1) GDPR<br />
|GDPR_Article_Link_2=Article 85 GDPR#1<br />
|GDPR_Article_3=Article 85(2) GDPR<br />
|GDPR_Article_Link_3=Article 85 GDPR#2<br />
|GDPR_Article_4=Article 4(1) GDPR<br />
|GDPR_Article_Link_4=Article 4 GDPR#1<br />
<br />
<br />
<br />
|National_Law_Name_1=§ 22 KUG<br />
|National_Law_Link_1=https://www.gesetze-im-internet.de/kunsturhg/__22.html<br />
|National_Law_Name_2=§ 23 KUG<br />
|National_Law_Link_2=https://www.gesetze-im-internet.de/kunsturhg/__23.html<br />
<br />
|Party_Name_1=Tina Tuner<br />
|Party_Link_1=<br />
|Party_Name_2=Cofo Entertainment<br />
|Party_Link_2=https://www.tina-turner-story.com/<br />
|Party_Name_3=<br />
|Party_Link_3=<br />
|Party_Name_4=<br />
|Party_Link_4=<br />
|Party_Name_5=<br />
|Party_Link_5=<br />
<br />
|Appeal_From_Body=LG Köln (Germany)<br />
|Appeal_From_Case_Number_Name=I-15 U 37/20<br />
|Appeal_From_Status=<br />
|Appeal_From_Link=<br />
|Appeal_To_Body=<br />
|Appeal_To_Case_Number_Name=<br />
|Appeal_To_Status=<br />
|Appeal_To_Link=<br />
<br />
|Initial_Contributor=Sara Horvat<br />
|<br />
}}<br />
<br />
The German Supreme Court held that in a case concerning a Tina Turner lookalike for a tribute show, artistic freedom outweighed Tina Turner's personality rights in application of §§ 22, 23 Art Copyright Act (KUG) which requires the same balancing exercise as [[Article 6 GDPR|Article 6(1)(f) GDPR]].<br />
<br />
== English Summary ==<br />
<br />
=== Facts ===<br />
Tina Turner sued the organiser of a tribute show called "Simply The Best - Die Tina Tuner Story" for injunctive relief. In her opinion, the photo and the name of the show gave the impression that she would be standing on stage in person or supporting the show. <br />
<br />
The question was whether the double looked too much like the original and whether advertising posters with her photo and the title "Simply The Best - The Tina Turner Story" gave the impression that the superstar herself was involved.<br />
<br />
In the first instance, the Regional Court of Cologne (LG Köln) held that the personality rights of Ms. Turner outweighed the artistic rights of the organiser. The Higher Regional Court of Cologne (OLG Köln) overturned this decision and held that the artistic freedom (Kunstfreiheit) outweighed the personality rights of Ms. Turner.<br />
<br />
=== Holding ===<br />
The German Supreme Court held that a claim for injunctive relief with regard to the use of Ms. Turner's likeness is not applicable on the grounds of § 1004(1)(2) and § 823(2) BGB (Civil Code), §§ 22, 23 KUG (Art Copyright Act). <br />
<br />
While the Court agreed with the previous instances that the pictures of the plaintiff constituted personal data pursuant to Article 4(1) GDPR, it based its decision on §§ 22, 23 KUG. Under the KUG, it is permissible to take and publish photos of people without their consent if it is in the "higher interest of Art", i.e. if the artistic value of such creation outweighs the personal rights of the person pictured. <br />
<br />
However, the Court did not decide on the relationship between the KUG and the GDPR. It rather left open the question whether the use of the plaintiff's image for the defendant's posters was for "artistic purposes" within the meaning of [[Article 85 GDPR|Article 85(1) and (2) GDPR]] and whether the conditions set out therein for the adoption or continued application of national provisions (i.e. the KUG) were fulfilled with regard to the constellation of the case in dispute. The Court merely held that Ms. Turner could base a claim for injunctive relief neither on the KUG nor on the GDPR because the comprehensive weighing required by both [[Article 6 GDPR|Article 6(1)(f) GDPR]] and §§ 22, 23 KUG led to the same result. <br />
<br />
It was true that the defendant had used a likeness of the plaintiff on each of the posters in the sense of § 22 (1) KUG. The depiction of a double was also to be regarded as a portrait of a famous person if - as in the case at issue - the impression was given to a not inconsiderable part of the public that the double was the famous person himself. However, this was not clear from the posters as they did not make any statement on this and were not ambiguous in this respect.<br />
<br />
The use of the portrait was permissible pursuant to § 23(1)(4) of KUG since it had not been made at the request of Ms. Turner, its dissemination or display served a higher artistic interest and the act of dissemination did not infringe any legitimate interest of her within the meaning of § 23(2) KUG. The same resulted from § 23(1)(1) KUG.<br />
<br />
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== English Machine Translation of the Decision ==<br />
The decision below is a machine translation of the German original. Please refer to the German original for more details.<br />
<br />
<pre><br />
subject<br />
<br />
Tina Turner<br />
motto<br />
<br />
Tina Turner<br />
<br />
1. If a person is represented by another person, the representation is (only) to be regarded as a portrait of the person represented if the deceptively real impression is created that it is the person represented himself, as is the case with the use of a double or "look-alike" or a recreated famous scene or photograph (continuation of BGH, judgment of December 1, 1999 - I ZR 226/97, GRUR 2000, 715, 716 f. [juris para. 21] = WRP 2000, 754 - The Blue Angel and judgment of May 18, 2021 - VI ZR 441/19, GRUR 2021, 1222 paras. 22 to 27 with further references). It is sufficient if a not inconsiderable part of the audience believes that it is the person portrayed.<br />
<br />
2. In such a case, the person actually depicted, but not the person allegedly depicted, can refer to the fact that the portrait was made to order within the meaning of Section 23 (1) No. 4 KUG. Only between the person actually portrayed and the artist can a relationship of trust arise due to the circumstances of the creation of the image, which prevents the distribution or display of the portrait for a higher interest in art.<br />
<br />
3. The advertisement for a show in which songs by a celebrity singer are sung by a performer who looks remarkably like her, with a portrait of the performer that gives the deceptively real impression of being the celebrity singer herself, is generally of the artistic freedom covered. However, advertising for such a tribute show constitutes an unjustified encroachment on the asset component of the prominent original's general personality rights if the incorrect impression is given that the prominent original supports it or is even involved in it.<br />
<br />
tenor<br />
<br />
The appeal against the judgment of the 15th civil senate of the Cologne Higher Regional Court of December 17, 2020 is rejected at the expense of the plaintiff.<br />
<br />
By rights<br />
facts<br />
1<br />
<br />
The plaintiff, who goes by the stage name Tina Turner, is a world-famous singer. The defendant is the producer of the show "SIMPLY THE BEST - THE tina turner STORY", in which the singer DF appears and presents the plaintiff's greatest hits. The defendant advertised the show with posters depicting D.F. and using the plaintiff's (artist) name in the caption "THE tina turner STORY".<br />
<br />
2<br />
<br />
The plaintiff, who has not consented to the use of her likeness or name, believes that because of the resemblance between D.F. and herself, the viewer assumes that she herself appears on the posters and is involved in the show. After an unsuccessful warning, she applied for<br />
<br />
1. to order the defendant to refrain from<br />
<br />
a) to use and/or have used the name of the plaintiff "Tina Turner" for advertising material for the promotion of the show "SIMPLY THE BEST - the Tina Turner Story" if this happens as shown below<br />
<br />
Illustration<br />
<br />
b) to use and/or have used the image of the plaintiff for advertising material for the promotion of the show "SIMPLY THE BEST - the Tina Turner Story" if this happens as shown below<br />
<br />
[the above posters are displayed]<br />
<br />
2. alternatively, ordering the defendant to refrain from doing so, under threat of further specified administrative measures,<br />
<br />
a) to use and/or have used the name of the plaintiff "Tina Turner" for advertising material for the application of the show "SIMPLY THE BEST - the Tina Turner Story", if this happens as shown below, without at the same time an addition that excludes any possibility of confusion to add<br />
<br />
[the above posters are displayed]<br />
<br />
b) to use and/or allow the use of the image of the plaintiff "Tina Turner" for advertising material for the show "SIMPLY THE BEST - the Tina Turner Story", if this happens as shown below, without at the same time an addition that excludes any possibility of confusion to add<br />
<br />
[the posters reproduced above are displayed].<br />
<br />
3<br />
<br />
The regional court (LG Cologne, ZUM-RD 2020, 293) granted the action according to the main claims. The Court of Appeal (OLG Köln, ZUM-RD 2021, 293) amended the judgment of the Regional Court and dismissed the lawsuit. With the appeal allowed by the court of appeal, the rejection of which the defendant requests, the plaintiff strives for the restoration of the district court's judgment and pursues her auxiliary requests subordinately.<br />
Reasons for decision<br />
4<br />
<br />
A. The Court of Appeal denied the plaintiff's claim for injunctive relief against the use of her likeness and her name after the main and the auxiliary request and stated as a reason:<br />
<br />
5<br />
<br />
A claim for injunctive relief with regard to the use of the portrait does not follow from § 1004 Paragraph 1 Clause 2, § 823 Paragraph 2 BGB, §§ 22, 23 KUG. It is true that the defendant used a picture of the plaintiff within the meaning of § 22 sentence 1 KUG on each of the posters. The depiction of a double is also to be regarded as a portrait of a famous person if - as in the case at hand - the impression is given to a not inconsiderable part of the audience that the double is the famous person himself. However, the use of the portrait is appropriate § 23 para. 1 no. 4 KUG, since it was not made to order by the plaintiff, its distribution or display serves a higher interest of art and the act of dissemination does not represent a legitimate interest of the plaintiff within the meaning of § 23 para. 2 KUG get hurt. The same results from Section 23 Paragraph 1 No. 1 KUG. In any case, the plaintiff cannot base a claim for injunctive relief on data protection law either, because the comprehensive weighing of interests that is also required in this respect comes to the same result as the weighing according to §§ 22, 23 KUG.<br />
<br />
6<br />
<br />
The plaintiff is also not entitled to an injunctive relief according to § 12 sentence 1 case 2 BGB because of the use of her name on the posters. There are already fundamental doubts as to whether the provision is applicable at all and whether the plaintiff's name is "used". In any case, the defendant's interests took precedence over those of the plaintiff.<br />
<br />
7<br />
<br />
A claim for injunctive relief does not result from § 1004 Section 1 Clause 2, § 823 Section 1 BGB, Article 1 Section 1, Article 2 Section 1 GG because of a violation of the plaintiff's general right of personality. It is true that the defendant encroached on the financial components of the plaintiff's personality rights by using her name and likeness for advertising purposes. However, this use is not illegal. In the context of the weighing process, the interests of the defendant, who could invoke their artistic freedom under Art. 5 (3) GG with regard to the design of the posters, deserved priority over the interests of the plaintiff in a decision on the use of the likeness and name.<br />
<br />
8th<br />
<br />
The lawsuit was unsuccessful even with the auxiliary requests. Since the defendant was not prevented from using the posters in the contested form as advertising material for the show, it could not be legally obliged to provide them with an explanatory addendum.<br />
<br />
9<br />
<br />
B. The admissible (see B I) revision of the plaintiff is unsuccessful. The Court of Appeal rightly dismissed the main claims against the use of the plaintiff's portrait (see B II) and name (see B III). With regard to the auxiliary requests, the dismissal of the action also stands (see B IV).<br />
<br />
10<br />
<br />
I. The revision is permitted without restrictions. The ruling sentence of the appeal judgment contains no limitation on the appeal admission. The case law of the Federal Court of Justice recognizes that a restriction on the admission of an appeal can also result from the reasons for the decision. However, according to the principle of clarity of appeal, the parties must be able to recognize without a doubt which legal remedy is possible for them and under what conditions it is permissible. Merely stating the reason for the admission of the appeal is not enough to assume that the appeal is only admitted to a limited extent (st. Rspr.; cf. only BGH, judgment of July 22, 2021 - I ZR 194/20, GRUR 2021, 1534 20 = WRP 2021, 1556 - broadcasting liability). In the grounds for its decision, the court of appeal explained that the case was of fundamental importance with regard to the requirements for the application of Section 23 (1) No. 4 KUG to portraits of celebrities or their doubles, which have not only been also subject to artistic freedom. In doing so, it merely stated the reason for the approval for revision, without restricting the legal remedy. Contrary to the opinion of the reply to the appeal, the statements of the court of appeal do not indicate that the approval for appeal was limited to the applications for injunctive relief directed against the use of the plaintiff’s portrait (1 b and 2 b), because the court of appeal rejected the applications for injunctive relief directed against the use of the plaintiff’s name (1 a and 2 a) based on the same considerations.<br />
<br />
11<br />
<br />
II. The Court of Appeal rightly has a claim for injunctive relief for the plaintiff from § 1004 paragraph 1 sentence 2, § 823 paragraph 1 and 2 BGB, §§ 22, 23 KUG because of the use of her picture on the posters of the defendant according to the main application (application 1 b) no.<br />
<br />
12<br />
<br />
1. The Court of Appeal correctly assumed that the defendant interfered with the pecuniary attribution of the right to the plaintiff's own image.<br />
<br />
13<br />
<br />
a) The decision as to whether and in what way one's own image should be made available for advertising purposes is an essential - pecuniary - part of the right of personality. The unauthorized use of an image for advertising purposes therefore constitutes an encroachment on the pecuniary attribution of the right to one's own image and, like any unauthorized encroachment on the right to one's own image, justifies a claim for injunctive relief. The question of whether an image has been used for advertising, i.e. commercially, is assessed from the point of view of the average viewer. An encroachment on the pecuniary attribution of the right to one's own picture can be considered in particular if the use of the portrait exploits the advertising and image value of the person depicted, for example by marketing the person depicted as the opening credits for a press product. However, it is also sufficient, but leads to a lower weight of the interference, if there is mere attentional advertising, i.e. the viewer's attention is only to be drawn to the advertised product (cf. BGH, judgment of January 21, 2021 - I ZR 207/19 , GRUR 2021, 643 paras. 12 to 14 = WRP 2021, 484 - holiday lottery, with further reference).<br />
<br />
14<br />
<br />
b) The Court of Appeal rightly assumed that the posters in question show a portrait of the plaintiff.<br />
<br />
15<br />
<br />
aa) If a person is represented by another person - for example an actor - the protection of the image is based on the following principles:<br />
<br />
16<br />
<br />
In the case of an identifiable portrayal of a person by an actor, the protection of the image belongs to the actor, who in this case also remains "personal" in his role and thus remains recognizable as himself. The depiction is (only) to be regarded as a portrait of the depicted person if the deceptively real impression is created that it is the depicted person himself, as is the case, for example, with the use of a double or "look-alike" or a re-enactment of a famous scene or photography may be the case (cf. BGH, judgment of October 28, 1960 - I ZR 87/59, GRUR 1961, 138, 139 - Schölermann family; judgment of December 1, 1999 - I ZR 226/97, GRUR 2000, 715, 716 f. [juris para. 21] = WRP 2000, 754 - The Blue Angel; Judgment of May 18, 2021 - VI ZR 441/19, GRUR 2021, 1222 para. 22 to 27 with further reference). It is not important on which features of the external appearance this impression is based; it does not have to result from the facial features, but can also result from other details characterizing the person concerned (cf. BGH, GRUR 2000, 715, 716 f. [juris para. 21] - The Blue Angel). Adding the name of the person portrayed can also contribute to this (cf. BGH, judgment of June 9, 1965 - Ib ZR 126/63, GRUR 1966, 102 [juris para. 9] - playmate).<br />
<br />
17<br />
<br />
In such cases, it is sufficient for the assumption of a portrait of the person portrayed if a not inconsiderable part of the audience addressed believes that it is the person portrayed (cf. OLG Karlsruhe, AfP 1996, 282 [juris para. 29]; LG Düsseldorf, AfP 2002, 64, 65; Wenzel/von Strobl-Albeg, The right of word and picture reporting, 6th edition, chapter 7 marginal number 24; on the question of recognizability in other cases see BGH, judgment of 29 September 2020 - VI ZR 445/19, ZUM-RD 2020, 637 para. 18).<br />
<br />
18<br />
<br />
bb) The Court of Appeal proceeded from these principles and stated that the main actress of the show depicted on the posters is strongly reminiscent of the plaintiff at the time when she herself performed on stage, due to her hairstyle and the pose she adopted. It does not matter that the plaintiff was significantly older than the double pictured at the time the posters were published. It could also be an older photo of the plaintiff from the time when she herself was still performing on stage. In addition, the plaintiff's name is mentioned in the title of the poster. From the point of view of the average recipient, it is therefore a representation of the plaintiff.<br />
<br />
19<br />
<br />
cc) The objections in the reply to the appeal against this assessment do not get through.<br />
<br />
20<br />
<br />
(1) Contrary to the opinion of the reply to the appeal, the use of a doppelganger is just one, but not the only, way by which the deceptively real impression can be created that it is the person portrayed. What is required is an assessment based on the overall circumstances, which the Court of Appeal made without any legal errors. In addition, the Court of Appeal assumed that the leading actress of the show depicted on the posters resembled the plaintiff in the sense of a double.<br />
<br />
21<br />
<br />
(2) Also unsuccessfully, the reply to the appeal repeats the defendant's submission in the factual instances that the attacked posters - simply because of the reference "THE tina turner STORY" - clearly show for the addressed public that it is not the plaintiff that is shown, but the significantly younger actress of a show that the plaintiff is the subject of; evoking an association with her is not sufficient to justify the protection of the image. The conclusion drawn from the reply to the appeal is by no means compelling; Nor does it claim that the Court of Appeal overlooked relevant circumstances in its assessment.<br />
<br />
22<br />
<br />
(3) The additional argument put forward by the reply to the appeal that it must be allowed to advertise a permitted tribute show with a picture from the show is irrelevant for the classification of the picture as a portrait of the plaintiff. The plaintiff is thus not impermissibly granted a right to her own life image in the sense of a right not to become a role model for a work figure (cf. on this BVerfGE 119, 1, 27 f. [juris para. 82 to 85]; BGH, GRUR 2021, 1222 para. 27). The question of whether the defendant's show encroaches on the plaintiff's rights is not the subject of the lawsuit. There is also no inadmissible duplication of image protection (cf. BGH, GRUR 2021, 1222 para. 22). The Court of Appeal did not find that it was (also) a portrait of D.F.<br />
<br />
23<br />
<br />
c) Also correct and unchallenged by the appeal, the Court of Appeal assumed that the plaintiff is affected in the property law attribution of her right to her own picture. This follows from the fact that the defendant used the image of the prominent plaintiff for advertising purposes without her consent.<br />
<br />
24<br />
<br />
2. Ultimately, there are no concerns that the Court of Appeal assessed the legality of the defendant's actions according to the graduated protection concept of §§ 22, 23 KUG.<br />
<br />
25<br />
<br />
a) The right to one’s own picture according to §§ 22, 23 KUG, as a special statutory expression of the general right of personality, aims to protect the personality from becoming available to others against their will in the form of the image (cf. BGH, GRUR 2021, 1222 para. 21 with further references). According to this, portraits of a person may only be distributed or publicly displayed with the consent of the person depicted (§ 22 sentence 1 KUG). In the absence of such consent, the distribution and display of a portrait is only permissible if it can be positively assigned to one of the exceptional circumstances of Section 23 (1) KUG and legitimate interests of the person depicted within the meaning of Section 23 (2) KUG are not violated. The exceptions include portraits from the field of contemporary history (§ 23 Para. 1 No. 1 KUG) and portraits that are not made to order, provided that the distribution or display serves a higher interest of the art (§ 23 Para. 1 No. 4 KUG).<br />
<br />
26<br />
<br />
b) The graduated protection concept of §§ 22, 23 KUG is consistent both with constitutional requirements and with the case law of the European Court of Human Rights (cf. BGH, GRUR 2021, 643 para. 31 - Urlaublotto, with further references).<br />
<br />
27<br />
<br />
c) The question of whether §§ 22, 23 KUG under the application of Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data, on the free movement of data and on the repeal of Directive 95/46/EC (General Data Protection Regulation , GDPR) are still applicable to the use of a person's likeness for artistic purposes can remain open in the present case, because in the case at hand there is nothing to indicate that a weighing up against the standard of Art. 6 Para. 1 Subparagraph 1 Letter f GDPR leads to another result could lead.<br />
<br />
28<br />
<br />
aa) According to Art. 2 Para. 1, the General Data Protection Regulation applies to the fully or partially automated processing of personal data and to the non-automated processing of personal data that is stored or is to be stored in a file system. According to Art. 4 No. 1 GDPR, personal data is all information relating to an identified or identifiable natural person. According to Art. 4 No. 2 GDPR, processing includes any process carried out with or without the help of automated processes or any such series of processes in connection with personal data such as collecting, recording, organizing, arranging, storing, adapting or changing, reading, retrieval, use, disclosure by transmission, dissemination or any other form of provision, comparison or linking, restriction, erasure or destruction.<br />
<br />
29<br />
<br />
The consent of the data subject to the processing of their personal data for one or more specific purposes leads to the lawfulness of the processing in accordance with Art. 6 Para. 1 Subparagraph 1 Letter a GDPR. In addition, the processing of the data according to Art. 6 Para. 1 Subparagraph 1 Letter f GDPR is lawful if it is necessary to protect the legitimate interests of the person responsible or a third party, unless the interests or fundamental rights and freedoms of the data subject who require the protection of personal data prevail. Art. 85 para. 1 GDPR stipulates that the Member States shall harmonize the right to the protection of personal data in accordance with this regulation with the right to freedom of expression and information, including processing for journalistic purposes and for scientific, artistic or literary purposes, by law bring. If it is necessary for this, according to Art. 85 Para. 2 GDPR, they provide for exceptions to Chapter II, which also includes Art. 6 GDPR. According to Art. 85 Para. 3 GDPR, each Member State shall immediately notify the Commission of the legal provisions enacted on the basis of Art. 85 Para. 2 GDPR, including any subsequent amendments.<br />
<br />
30<br />
<br />
bb) The Court of Appeal affirmed the existence of personal data within the meaning of Art. 4 No. 1 GDPR. The revision does not attack this assessment. According to the case law of the Court of Justice of the European Union on the similarly worded predecessor provision in Art. 3 Para. 1 of Directive 95/46/EC on the protection of natural persons with regard to the processing of personal data and on the free movement of data, the image recorded by a camera falls under a person this term (cf. ECJ, judgment of February 14, 2019 - C-345/17, GRUR 2019, 760 para. 31 - Buivids, with further references). However, the case law of the Court of Justice of the European Union has not yet clarified the question of whether a person can also be regarded as identifiable if in reality another person is depicted, but by a not inconsiderable part of the public that person is held.<br />
<br />
31<br />
<br />
cc) The court of appeal did not make any determinations as to whether the defendant fulfilled one of the facts specified in Art. 4 No. 2 GDPR when using the disputed image. According to the case law of the Court of Justice of the European Union on the similarly worded predecessor provision in Art. 3 Para. 1 of Directive 95/46/EC, the (video) recording of a person on the memory of a camera constitutes automated processing of personal data (cf. ECJ, GRUR 2019, 760 para. 35 - Buivids, with further references). In addition, disclosure through the distribution of the image in the course of postering also leads to the scope of the General Data Protection Regulation (for the concept of disclosure through distribution see Herbst in Kühling/Buchner, DS-GVO BDSG, 3rd ed., Art. 4 DSGVO 31 f.; BeckOK.Datenschutzrecht/Schild, 38th edition [as of November 1, 2021], Art. 4 GDPR marginal 49 f. with further references).<br />
<br />
32<br />
<br />
dd) The Court of Appeal further stated that the plaintiff's claim for injunctive relief does not exist even if one assumes that the regulations in §§ 22, 23 KUG, but rather the data protection standard of Art. 6 Para. 1 Subparagraph 1 Letter f GDPR should be applied because the legislator outside the area of journalistic activity has not yet made use of the opening clause of Art. 85 Para. 2 GDPR have. In the absence of the plaintiff's consent, Article 6(1)(1)(f) GDPR also requires a comprehensive assessment of all conflicting fundamental rights positions of the plaintiff and the defendant. The result remains the same as under §§ 22, 23 KUG, especially since in the specific case no different scope of the fundamental rights of the Charter of Fundamental Rights of the European Union to be taken into account under Art. 51 (1) EU Charter of Fundamental Rights when applying the General Data Protection Regulation in relation to the national fundamental rights of the Basic Law, including the specifications from the European Convention on Human Rights to be taken into account in the interpretation. This assessment is free of legal errors.<br />
<br />
33<br />
<br />
(1) When applying regulations that have been completely standardized under Union law, the fundamental rights of the Charter of Fundamental Rights of the European Union are relevant due to the fundamental application priority of Union law, insofar as the fundamental rights protection guaranteed by them - as can also be assumed according to settled case law of the Federal Constitutional Court - is sufficiently effective (cf BVerfGE 152, 216 paragraphs 42 to 49 - right to be forgotten II). Complete standardization can be assumed for the matters covered by the General Data Protection Regulation (cf. BVerfGE 152, 216 para. 41 - right to be forgotten II; BGH, GRUR 2021, 643 para. 40 - Urlaublotto). In the event of a dispute - assuming the applicability of the General Data Protection Regulation - the plaintiff would have the fundamental rights to respect for private and family life from Article 7 of the EU Charter of Fundamental Rights and to the protection of personal data from Article 8 of the EU Charter of Fundamental Rights and on the part of the defendant to weigh up the fundamental rights to freedom of art from Art. 13 EU Charter of Fundamental Rights and additionally to entrepreneurial freedom from Art. 16 EU Charter of Fundamental Rights.<br />
<br />
34<br />
<br />
(2) Correctly and not challenged by the appeal, the Court of Appeal assumed that a weighing of interests to be carried out on the basis of Article 6(1)(1)(f) GDPR must lead to the same result as one based on Sections 22 and 23 KUG . The Court of Justice of the European Union has already stated, when examining the legality of data processing according to Directive 95/46/EC, that this requires a weighing of the respective conflicting rights and interests, in which the meaning of the rights of the data subject from Art. 7 and 8 EU Charter of Fundamental Rights must be taken into account (cf. ECJ, judgment of May 13, 2014 - C-131/12, GRUR 2014, 895 para. 74 = WRP 2014, 805 - Google Spain and Google). There is nothing to suggest that these principles should no longer apply when applying the General Data Protection Regulation. Neither in the Charter of Fundamental Rights of the European Union itself nor in the case law of the Court of Justice of the European Union are there any indications of a fundamental priority or subordination of one of the fundamental rights affected on one side over the fundamental rights to be abolished on the other side (on Art. 7 , 8 and 11 EU Charter of Fundamental Rights cf. BVerfGE 152, 216 para. 141 - right to be forgotten II; on Art. 7, 8, 11 and 16 EU Charter of Fundamental Rights cf. BGH, GRUR 2021, 643 para. 41 - holiday lottery).<br />
<br />
35<br />
<br />
ee) According to this, no decision is required as to whether the use of the plaintiff's portrait for the defendant's posters was for "artistic purposes" within the meaning of Art. 85 (1) and (2) GDPR and the requirements set out therein for the enactment or continued validity national regulations are met with regard to the constellation of the dispute (for § 23 Para. 1 No. 4 KUG negative Wenzel/von Strobl-Albeg loc. 7 para. 130; in the result affirmative BeckOK. Copyright/Engels, 33rd Edition [ as of January 15, 2022], Section 22 KUG, paragraphs 10a to 10e; on Section 23 (1) no. ZUM-RD 2020, 642 para. 10 mwN; Federal Court of Justice, ZUM-RD 2020, 637 para 1 GDPR contains an independent opening clause and Art. 85 Para . BeckOK.InfoMedienR/Cornils, 34th edition [as of February 1, 2021], Art. Wenzel/von Strobl-Albeg loc. 7 paragraphs 122 to 125, 127 to 128 and 130).<br />
<br />
36<br />
<br />
ff) A referral to the Court of Justice of the European Union pursuant to Art. 267 (3) TFEU is not necessary after all. In the event of a dispute, there is no question of relevance to the decision on the interpretation of Union law that has not already been clarified by the case law of the Court of Justice or cannot be answered unequivocally (on this standard cf. ECJ, judgment of October 6, 1982 - 283/81, ECR 1982, 3415 paragraph 21 = NJW 1983, 1257 - Cilfit and others; Judgment of 6 October 2021 - C-561/19, NJW 2021, 3303 paragraphs 33, 36 and 39 to 49 - Consorzio Italian Management and Catania Multiservizi).<br />
<br />
37<br />
<br />
3. There is no dispute between the parties that the plaintiff did not consent to the use of her likeness on the posters pursuant to § 22 sentence 1 KUG.<br />
<br />
38<br />
<br />
4. As a result, the Court of Appeal rightly considered the use of the plaintiff's picture on the defendant's posters to be permissible under Section 23 (1) No. 4 and (2) KUG.<br />
<br />
39<br />
<br />
a) Contrary to the opinion of the appeal, the plaintiff cannot successfully claim that § 23 para. 1 no. 4 KUG cannot intervene in favor of the defendant because the portrait in question was made to order.<br />
<br />
40<br />
<br />
aa) According to its wording, this exclusion does not contain any further requirements than the requirement that the production of the portrait must be based on an order.<br />
<br />
41<br />
<br />
bb) However, the justification for the fact of exclusion can be found in the legislative material on § 23 Paragraph 1 No. 4 KUG that the person depicted "in the event that a portrait is ordered ... [enters] a kind of trusting relationship with the artist that goes further Consideration of his interests is required" (RT-Verhandl. 11-II 1905/06 No. 30, p. 1540; cf. also LG Frankfurt, ZUM 2017, 772, 775 [juris para. 67]; Götting in Schricker/Loewenheim, copyright , 6th edition, § 23 KUG marginal number 101 with reference; Specht in Dreier/Schulze, UrhG, 7th edition, § 23 KUG marginal number 43; Wenzel/von Strobl-Albeg loc. cit. Chapter 8 marginal number 87).<br />
<br />
42<br />
<br />
(1) If the person depicted is also the customer of the portrait, he is usually in a contractual relationship with the artist, which justifies his confidence that the artist will only (further) use the portrait for his own artistic purposes with his consent.<br />
<br />
43<br />
<br />
(2) If the order is placed by a person other than the person depicted, there is usually no contractual relationship between the person depicted and the artist. However, this does not change the fact that the person depicted enters into a relationship of trust with the artist through their decision to make themselves available for the production of a portrait on the basis of an order - which does not necessarily come from themselves. In such a case, she can therefore expect that the artist will only use the portrait for his own interests, which are fundamentally protected by artistic freedom, with her consent.<br />
<br />
44<br />
<br />
(3) If the person actually depicted is not identical to the person who is (allegedly) depicted from the point of view of a not inconsiderable part of the audience addressed, according to the spirit and purpose of the provision, the person actually depicted, but not the supposedly depicted person, can be sued against the Objecting to the use of the image that it was made to order. Only between the person actually portrayed and the artist can a relationship of trust arise due to the circumstances of the creation of the image, which prevents its dissemination or display for a higher interest in art.<br />
<br />
45<br />
<br />
cc) According to these principles, the plaintiff cannot successfully claim that the portrait was made to order. Since the image actually shows D.F. and not the plaintiff, a relationship of trust may have arisen between D.F. and the artist, which restricts the application of the justification under Section 23 (1) No. 4 KUG.<br />
<br />
46<br />
<br />
b) As a result, the Court of Appeal correctly held that the use of the plaintiff's picture on the defendant's posters was justified under Section 23 Paragraph 1 No. 4 and Paragraph 2 KUG.<br />
<br />
47<br />
<br />
aa) The requirements of Section 23 Paragraph 1 No. 4 KUG are met if the distribution or display of the portrait serves a higher interest in art. A distribution of the portrait exists when (in particular) physical copies of the portrait are passed on, a display when it is made visible to the public (cf. Götting in Schricker/Loewenheim aaO § 22 KUG marginal number 36 f.; Fricke in Wandtke/Bullinger, copyright , 5th edition, Section 22 KUG marginal number 8 f.; Specht in Dreier/Schulze, loc. cit. Section 22 KUG, marginal number 9 to 10a; BeckOK /Meckel/Hentsch, copyright, 4th edition, Section 22 KUG, paragraphs 14 and 16; Wenzel/von Strobl-Albeg, loc. cit., Chapter 7, paragraph 139 f.). The dissemination or display of the portrait serves an interest in art if it is carried out for a purpose falling under Art. 5 Para. 3 Sentence 1 GG (cf. OLG Celle, ZUM 2011, 341, 345 [juris para. 32]) . The protection conferred by Article 5(3) sentence 1 GG does not depend on a specific artistic quality (cf. BVerfGE 79, 369, 377 [juris para. 18]; BGH, GRUR 2021, 1222 para. 31 with further references). It is not necessary for the image used to be a work protected by copyright (LG Berlin, ZUM-RD 2014, 105, 107 [juris para. 26]; LG Frankfurt, ZUM 2017, 772, 775 [juris para. 67]; LG Hamburg, NJW-RR 2017, 1392, 1392 f. [juris para. 32]); Götting in Schricker/Loewenheim aaO § 23 KUG marginal number 103; Fricke in Wandtke/Bullinger loc. cit. Section 23 KUG marginal number 41; Woodpecker in Dreier/Schulze loc. cit. § 23 KUG marginal number 43).<br />
<br />
48<br />
<br />
However, anyone who does not pursue a purpose that falls within the scope of protection of artistic freedom under Article 5 (3) sentence 1 of the Basic Law, but merely wants to satisfy his business interests by exploiting the likeness of another person for advertising purposes cannot invoke Section 23 (1) No. 4 KUG (cf. RT-Verhandl. 11-II 1905/06 No. 30, p. 1540; Götting in Schricker/Loewenheim loc. cit. § 23 KUG marginal number 102; Fricke in Wandtke/Bullinger loc / Schulze loc. cit. § 23 KUG marginal 43; on § 23 (1) no. However, it should be noted that the advertising for a work of art - just like the work of art itself - enjoys the protection of artistic freedom in accordance with Art. 5 (3) sentence 1 GG in its so-called sphere of action (cf. BVerfGE 77, 240, 251 [juris 31]; BGH, judgment of December 1, 1999 - I ZR 49/97, BGHZ 143, 214, 229 f. OLG Celle, ZUM 2011, 341, 345 [juris para. 32]; LG Hamburg, NJW-RR 2017, 1392, 1393 [juris para. 37 f.]; Specht in Dreier/Schulze aaO § 23 KUG para. 43; BeckOK .Copyright/Engels aaO § 23 KUG Rn. 21). A predominance of economic over artistic purposes does not exclude the scope of § 23 Para. 1 No. 4 KUG (but probably VerfGH Berlin, NJW-RR 2007, 1686, 1688 [juris marginal note 42] with further references; OLG Düsseldorf, AfP 2014, 454, 455 [juris para. 17]; LG Düsseldorf, judgment of November 28, 2012 - 12 O 545/11, juris para. 28; Engels in Möhring/Nicolini, copyright, 4th edition, § 23 KUG para. 21 ; BeckOK.Copyright/Engels aaO § 23 KUG marginal number 21; Wenzel/von Strobl-Albeg aaO chapter 8 marginal number 89 f.), but must be taken into account when weighing interests.<br />
<br />
49<br />
<br />
If the scope of § 23 Para. 1 No. 4 KUG is open, the assessment of whether the distribution or display of the plaintiff's portrait serves a higher (i.e. overriding) interest in art requires a weighing - which must be fully examined under revision law - between the The plaintiff's interest in protecting her personality and the interest perceived by the defendant in marketing a work of art that she is responsible for. The examination is to be based on a normative standard that takes sufficient account of the conflicting interests (on Section 23 (1) No. 1 KUG cf. BGH, judgment of November 22, 2011 - VI ZR 26/11, NJW 2012, 763 para 24; BGH, GRUR 2021, 643 para. 27 - Urlaubslotto, with further references; cf. also BVerfG, NJW 2018, 1744 paras. 18 to 22; BGH, GRUR 2021, 1222 para. 34; OLG Celle, ZUM 2011, 341, 345 [juris para. 32]; LG Düsseldorf, judgment of November 28, 2012 - 12 O 545/11, juris para. 28; OLG Düsseldorf, AfP 2014, 454, 455 [juris para. 17]; LG Berlin, AfP 2015 , 177, 170 [juris paras. 30 to 40]; LG Frankfurt, ZUM 2017, 772, 775 [juris para. 67]; LG Hamburg, NJW-RR 2017, 1392, 1393 [juris para. 39 f.]; LG Darmstadt, CR 2020, 47, 48 [juris para. 23 f.]; LG Berlin, AfP 2020, 264, 266 f. [juris para. 52 to 56]; Dreyer in Dreyer/Kotthoff/Meckel/Hentsch loc paragraph 56).<br />
<br />
50<br />
<br />
A legitimate interest of the person depicted within the meaning of Section 23 (2) KUG is violated if the image has an inherent content of infringement that has not yet been taken into account in the assessment according to Section 23 (1) No. 4 KUG, for example due to the way in which it was obtained or Presentation (cf. BGH, judgment of March 6, 2007 - VI ZR 51/06, GRUR 2007, 527 para. 33; Judgment of March 10, 2009 - VI ZR 261/07, GRUR 2009, 584 para. 15; BGH, NJW 2012, 763 para. 30; BGH, judgment of September 29, 2020 - VI ZR 449/19, GRUR 2021, 106 para. 27).<br />
<br />
51<br />
<br />
bb) Insofar as the use of a portrait coincides with a verbal expression, the latter must also be included in the examination of the question of whether the personality rights of the person depicted are being violated (cf. BGH, judgment of October 28, 2008 - VI ZR 307/07, BGHZ 178, 213 para. 19 mwN). For this purpose, the objective meaning of the statement must be determined from the point of view of an unbiased and reasonable average audience (cf. BVerfGE 114, 339, 348 [juris para. 31]; BVerfG, decision of November 11, 2021 - 1 BvR 11/20, juris para 17; BGH, judgment of April 27, 2021 - VI ZR 166/19, GRUR 2021, 1096 para. 11 with further references). The interpretation of the meaning is subject to full review by the Court of Appeal (cf. BGH, GRUR 2021, 1096 para. 11 with further references). The starting point is the wording of the statement, which, however, cannot definitively define the meaning. In addition, the overall context in which the statement was made must be taken into account. Distant interpretations are to be discarded. If the meaning is clear based on this standard, it is to be used as a basis for further examination. However, if it is shown that an unbiased and understanding public perceives the statement as ambiguous or if significant parts of the public understand the content differently, further examination must assume that the content is ambiguous (cf. BVerfGE 114, 339, 348 [juris para. 31 ]; BVerfG, decision of November 11, 2021 - 1 BvR 11/20, juris para. 17; BGH, GRUR 2021, 1096 para. 11 with further references). On the other hand, statements that appear ambiguous to such an extent that they are not understood as an independent assertion of a specific state of affairs, but are readily recognized as factually incomplete and in need of supplementation are missing, on the other hand, in the case of statements, particularly in the case of slogans and keyword-like statements (cf. BVerfGK 18, 33, 40 para. 23; BGH, judgment of March 11, 2008 - VI ZR 7/07, NJW 2008, 2110 para. 14; judgment of January 26, 2021 - VI ZR 437/ 19, GRUR 2021, 875 para. 23).<br />
<br />
52<br />
<br />
cc) The Court of Appeal assumed that the portrait served a higher interest in art. The show presented by the defendant and thus also the posters as advertising material fell within the scope of protection of artistic freedom according to Art. 5 Para. 3 GG. The fact that the show cannot be classified as an artistically high-quality musical with the staging of a storyline does not conflict with the character as a work of art, but ultimately consists only of a series of songs by the plaintiff, which are sometimes interrupted by short text passages, but without a stringent presentation of the plaintiff's life. The defendant's show as such is not subject to any competition law or copyright injunctive relief by the plaintiff. It is true that anyone who does not primarily pursue artistic purposes by exploiting the likenesses of another person, but merely wants to satisfy his business interests with regard to advertising purposes, cannot invoke the exceptional provisions of Section 23 (1) No. 4 KUG. However, that is not the case here. The defendants' posters served to draw the public's attention to a show about the life of the plaintiff, in which the plaintiff's songs were performed. There is neither an image transfer nor an attention-grabbing with regard to a "foreign" product, but rather an accurate description of the content of the show.<br />
<br />
53<br />
<br />
The publication of the plaintiff's picture on the posters would not violate her legitimate interests within the meaning of Section 23 (2) KUG. In the context of the consideration, the artistic freedom of the defendant takes precedence over the general right of personality of the plaintiff in the form of her right to her own picture. Only the social sphere and not the private sphere of the plaintiff is affected, because she has performed the songs of the show publicly during her professional life and it is in a purely economic interest to exploit her popularity financially according to her own ideas.<br />
<br />
54<br />
<br />
The posters did not contain any untrue statements about their involvement in the show. It is undisputed that there is no express reference to this; Rather, it is clear to the average recipient through the phrase "THE tina turner STORY" that the plaintiff's story is being told in the show "SIMPLY THE BEST". The unavoidable impression of the plaintiff's participation in the show is also not given. It is unlikely that a recipient, based on the appearance of the posters, would assume that the plaintiff, who was over 80 at the time the posters were published, was personally present or even assumed that she had indisputably ended her active career more than ten years ago. The average recipient does not assume that she will appear on the defendant's show as part of a so-called comeback. Such a return, which would be a sensation in music circles, would in no case be announced by posters such as the one at issue, which made no mention of it at all, given the applicant's worldwide fame. The average viewer of the poster thus gets the impression that a singer who looks similar to the younger plaintiff is appearing in the defendant's show. Nothing else follows from the use of the plaintiff's name in the phrase "THE tina turner STORY". From the point of view of the average recipient, it is merely a synopsis of the defendant's product.<br />
<br />
55<br />
<br />
The unavoidable impression is also not given that the plaintiff supports the show and thereby gives it a special authenticity. It is doubtful that an average recipient would give any further thought to whether the show was being carried out with the plaintiff's consent or support. Even if this is the case in individual cases, it does not necessarily follow that he assumes that consent will be granted; it is also possible that he does not consider this to be necessary.<br />
<br />
56<br />
<br />
As a result, this assessment stands up to legal scrutiny.<br />
<br />
57<br />
<br />
dd) Contrary to what the appeal on the law says, the application of Section 23 (1) No. 4 KUG does not conflict with the fact that the defendant used a portrait of the plaintiff to advertise another art form - in this case a tribute show.<br />
<br />
58<br />
<br />
(1) The wording of the provision, which refers to whether the dissemination or display of the portrait - not the portrait itself (cf. Specht in Dreier/Schulze loc use of the image for another work of art without further ado. It also doesn't matter whether the other work of art is by the same artist who created the portrait. Against the background of the broad scope of protection of artistic freedom under Art. 5 (3) sentence 1 GG described above (cf. paras. 47 f.), the advertising of the other work of art is also covered by the scope of the provision. This view is not contradicted by the fact that the Senate did not (also) apply this provision in its "Marlene Dietrich" decision, but only applied Section 23 (1) No. 1 KUG. In this case, there was no connection between the advertised products and the musical that was recognizable to third parties, so that artistic freedom was not relevant (cf. BGHZ 143, 214, 229 f. [juris para. 74]).<br />
<br />
59<br />
<br />
(2) Although the Court of Appeal initially raised the question of whether the portrait itself serves a higher interest in art, in its further explanations it focused on the exploitation and publication of the portrait. In essence, it has thus at least affirmed the display of the portrait. The revision raises no objections to this; Legal errors are not evident in this respect either. There is also no doubt that the defendant's show falls within the scope of protection of artistic freedom.<br />
<br />
60<br />
<br />
ee) The appeal is also not successful because the Court of Appeal did not already carry out the necessary balancing of interests within the framework of § 23 Para. 1 No. 4 KUG, but only during the examination required under § 23 Para Distribution or display of the image violates a legitimate interest of the person depicted. The decisive factor is whether the court of appeal on both sides included all aspects to be considered in the weighing of interests and weighted them without making any legal errors.<br />
<br />
61<br />
<br />
ff) With the complaint that the Court of Appeal incorrectly referred to whether the defendant with the posters for her show created the undeniable impression of the plaintiff's participation or support, the appeal also fails. This does not require a decision as to whether this standard developed for the right of expression can be transferred to the constellation of the dispute. It can also remain open whether, in view of the overall effect of the posters, one can assume a coherent statement of facts that is meaningful in itself. Irrespective of this, the Court of Appeal came to the correct conclusion that the posters in any case did not contain any untrue statements of fact.<br />
<br />
62<br />
<br />
(1) The Court of Appeal assumed that the express assertion that the plaintiff in the appear in the defendant's advertised show or take part in it in any other way. The Court of Appeal did not explicitly state that the posters also did not contain the express assertion that the plaintiff had consented to the performance of the show or supported it, but it also denied the substance of the matter. This assessment is correct and is not challenged by the revision.<br />
<br />
63<br />
<br />
(2) The posters also do not contain any ambiguous statements.<br />
<br />
64<br />
<br />
The Court of Appeal ruled out the possibility that a recipient would assume that the plaintiff was participating in the defendant's show based on the appearance of the posters. The reason given was that the plaintiff was over 80 years old and that her career officially ended more than ten years ago, and that a comeback by the plaintiff would be announced in a different form and would also take place in larger halls. The statement of the plaintiff's name was related solely to the content of the show by the court of appeal; at best, the impression arises that a singer who looks similar to the younger plaintiff is appearing in a show in which "the Tina Turner story" is being told. There is no objection to this assessment. Contrary to the opinion of the appeal, it does not contradict the previous finding of the court of appeal that the average recipient sees the picture on the posters as a representation of the plaintiff. These are different test items. The Court of Appeal first checked whether there was a picture of the plaintiff and then determined the message content of the posters. A show about the songs and life of the plaintiff can be advertised with a likeness of the plaintiff even if she does not appear on the show herself.<br />
<br />
65<br />
<br />
The posters are also not ambiguous because a significant part of the audience addressed takes the information from them that the plaintiff supports the defendant's show, for example by agreeing to its performance. The Court of Appeal did not explicitly examine this question. However, it has already considered it doubtful that an average recipient would give it any further thought at all; even if this is the case in individual cases, it is possible that he does not consider the plaintiff's consent to be necessary. There is no objection to this assessment. According to the overall effect of their image and word components, the posters do not contain any statement as to whether the plaintiff consented to the defendant's show. In order to get such an impression, the recipients would have to think about a connection between the plaintiff and the defendant's show, detached from the content of the posters. Neither the findings of the Court of Appeal nor other circumstances suggest that a significant proportion of the recipients would have had a misconception about this - also taking into account their possible previous knowledge about the plaintiff. The fact that there is a musical authorized by the plaintiff does not change this, which is emphasized by the appeal. The plaintiff has not substantiated the notoriety of this musical; Nor is it otherwise apparent that there would have been any significant confusion with the defendant's show.<br />
<br />
66<br />
<br />
(3) The Court of Appeal also applied the standard applicable in the right to utterance for hidden ("between the lines") assertions, according to which it must be examined whether an additional statement of one's own contained in the interplay of the open statements imposes itself on the reader as an irrefutable conclusion (cf. BVerfGK 2, 325, 238 [juris para. 16]; BVerfG, NJW 2018, 1596 para. 22; BGH, judgment of July 8, 1980 - VI ZR 159/78, BGHZ 78, 9, 14 [juris para 41]; Judgment of June 28, 1994 - VI ZR 273/93, VersR 1994, 1123, 1124 [juris para. 19]; Judgment of July 2, 2019 - VI ZR 494/17, AfP 2019, 434 para. 30 With further references; BGH, GRUR 2021, 1096 para. 12).<br />
<br />
67<br />
<br />
It can remain open whether these principles also apply to the assessment of poster advertising with only a few verbal elements for an event protected by artistic freedom. In view of the few open statements contained on the posters, which are essentially limited to an illustration and the statement "SIMPLY THE BEST - THE tina turner STORY", the assumption of a concealed factual claim in the case of a dispute is far from correct. The judgment of the Court of Appeal therefore proves to be correct in the final analysis. There is also no need to refer the matter back to the Court of Appeal in order to make further determinations as to the effect of the posters, because the Senate can determine their information content independently.<br />
<br />
68<br />
<br />
gg) The encroachment on the financial component of the plaintiff's right to her own image is also not illegal because of an image transfer from the plaintiff to the defendant's product.<br />
<br />
69<br />
<br />
The use of a portrait of the plaintiff with her name ("THE tina turner STORY") increases the audience's attention to the defendant's show compared to an announcement without a depiction of a person who looks deceptively similar to the plaintiff and even more so without naming the plaintiff's name . In addition, an image transfer takes place insofar as the show is also associated with the songs and the life of the world-famous plaintiff by parts of the audience who do not already have such an association through the use of the plaintiff's song title "Simply the best". In this sense, the depiction of a person who looks deceptively similar to the plaintiff is also suitable for giving or strengthening the impression of the authenticity of the show advertised.<br />
<br />
70<br />
<br />
However, the defendant's show, which is protected by artistic freedom, is designed in a fundamentally permissible manner to achieve such an effect. In addition, the selection of a suitable singer is based on the defendant's own performance. Therefore, advertising a show in which songs by a celebrity singer are sung by a performer who looks deceptively like her, with a portrait of the performer that gives the deceptively real impression of being the celebrity singer herself, is fundamentally of artistic freedom covered. An unjustified encroachment on the asset component of the prominent original's general personality rights would only be associated with advertising for such a tribute show if - as is not the case here - the incorrect impression was given that the prominent original supported it or even had an effect on it with. This applies regardless of the classification of the show to be assessed in the dispute as a musical, which - regardless of the use of the term on one of the posters - is not the subject of the legal dispute. The plaintiff does not claim that the contents of the show are illegal and it is also not apparent.<br />
<br />
71<br />
<br />
hh) The appeal on the law does not object to an additional infringement content to be taken into account under Section 23 (2) KUG; there are no indications of this either.<br />
<br />
72<br />
<br />
c) Due to the justification already occurring according to § 23 Section 1 No. 4 and Section 2 KUG, no decision is required as to whether the image used is also a portrait from the field of contemporary history, whose distribution and display according to § 23 Para. 1 No. 1 and Para. 2 KUG is permitted.<br />
<br />
73<br />
<br />
III. The Court of Appeal also rightly has a claim for injunctive relief because of the use of the plaintiff's name on the defendant's posters according to the plaintiff's main application (application 1 a) from § 1004 para. 1 sentence 2, § 823 para. 1 BGB, Art. 1 para 1, Article 2 Paragraph 1 GG and § 12 sentence 2 BGB negative.<br />
<br />
74<br />
<br />
1. The Court of Appeal stated that in the dispute there was no unjustified presumption of name according to Section 12 Clause 1 Case 2 BGB. There are fundamental doubts as to whether the provision is applicable at all. In essence, the plaintiff is not opposed to the assumption of a name, but to the use of her name for advertising purposes. In addition, there are doubts as to whether the use of the phrase "THE tina turner STORY" constitutes use of the plaintiff's name, because the defendant - as becomes clear from the addition "STORY" - merely refers to the content of the event it is advertising. In any case, the defendant's interests took precedence over those of the plaintiff. In particular, the recipients were not deceived by using the name within the phrase "THE tina turner STORY". The naming is primarily a summary of the "story" that the defendant is performing with songs by the plaintiff.<br />
<br />
75<br />
<br />
There is an encroachment on the financial component of the plaintiff's general right of personality. By naming her name on the poster, the defendant had infringed on the plaintiff's right to decide on the use of her name for advertising purposes. However, this encroachment is not unlawful because the interests of the defendant, who can invoke her artistic freedom, deserve priority over the interests of the plaintiff in a decision on the use of her name.<br />
<br />
76<br />
<br />
This assessment stands up to legal scrutiny.<br />
<br />
77<br />
<br />
2. The Court of Appeal correctly denied any use of the name within the meaning of § 12 Clause 1 Case 2 BGB.<br />
<br />
78<br />
<br />
a) If the interests of the entitled person are violated because another person uses the same name without authorization, the entitled person can demand a cease-and-desist from the other person according to § 12 sentence 1 case 2, sentence 2 BGB if further impairments are to be feared. The name protection also extends to an artist name of the person addressed (cf. BGH, judgment of March 18, 1959 - IV ZR 182/58, BGHZ 30, 7, 9 [juris para. 9]; judgment of October 5 2006 - I ZR 277/03, BGHZ 169, 193 para. 10 - kinski-klaus.de; Wenzel/Burkhardt/Peifer loc.cit. chapter 10 para. 40). An unjustified presumption of name according to § 12 sentence 1 case 2 BGB exists if a third party uses the same name without authorization, resulting in confusion and interests of the bearer of the name that are worthy of protection are violated (cf. BGH, judgment of September 28, 2011 - I ZR 188/ 09, GRUR 2012, 534 para. 8 = WRP 2012, 1271 - Landgut Borsig; Judgment of December 10, 2015 - I ZR 177/14, GRUR 2016, 749 para. 15 = WRP 2016, 877 - Landgut A. Borsig). The use of a third party's name within the meaning of § 12 sentence 1 case 2 BGB also exists if the third party attaches the name of the entitled person to himself as a company name, as an establishment designation or as another designation of a company or designates someone else with the name in question. The fact that descriptive suffixes are added to the name does not prevent the use of the same name. The traffic does not pay attention to these descriptive additions, but to the distinctive name (cf. BGH, GRUR 2012, 534 para. 11 - Landgut Borsig; GRUR 2016, 749 para. 19 - Landgut A. Borsig).<br />
<br />
79<br />
<br />
However, not every use of someone else's name can be regarded as "use" within the meaning of Section 12 of the German Civil Code. The purpose of the provision is solely to protect the name in its function as a means of identifying the person who bears it. For this reason, only uses that are likely to cause confusion about the name are prohibited. For this purpose, a use of the name by a third party as a name or a trademark as well as a use by which the bearer of the name is associated with certain facilities, goods or products with which he has nothing to do can be considered. For this it is sufficient that the wrong impression can arise in traffic that the bearer of the name has granted the user the right to use the name accordingly (BGH, GRUR 2012, 534 para. 12 - Landgut Borsig; GRUR 2016, 749 para. 24 - Landgut A .Bursig).<br />
<br />
80<br />
<br />
The concept of interest within the meaning of Section 12 BGB is broad and, outside of business transactions, not only includes a financial or business interest, but any interest of the bearer of the name, including a purely personal or immaterial and even a mere affective interest. In the area of the civil name, the interest of the bearer of the name is enough not to be confused with other people or to be related. In contrast, the unauthorized person cannot usually refer to matters worthy of protection that would have to be taken into account in his favour, so that the unauthorized use of the name already indicates a violation of interests (cf. BGH, GRUR 2012, 534 para. 43 and 45 - Landgut Borsig; GRUR 2016 , 749 para. 32 f. - Landgut A. Borsig).<br />
<br />
81<br />
<br />
b) According to these principles, the defendant did not use the name of the plaintiff within the meaning of § 12 sentence 1 case 2 BGB.<br />
<br />
82<br />
<br />
aa) The plaintiff assumes, as evidenced by her applications, that the title of the show is "SIMPLY THE BEST - THE tina turner STORY" and that the plaintiff's (artist) name is part of this title. According to this - at least when looking at the graphically separate (sub)title "DIE tina turner STORY" independently - the plaintiff's name would have been used insofar as this would give the incorrect impression of her participation in the show (on the use of a name as a work title cf . Wenzel/Burkhardt/Peifer, loc. cit., Chapter 10, paragraph 45 with further references; for use as a product designation, see MünchKomm.BGB/Säcker, 9th edition, § 12, paragraphs 116 to 118). The other components "THE ... STORY" merely represent a descriptive addition and do not preclude the use of the name.<br />
<br />
83<br />
<br />
bb) According to the findings of the Court of Appeal, which are free of legal errors and not challenged by the appeal, the title of the defendant's show is "SIMPLY THE BEST", while the addition "THE tina turner STORY" is an accurate description of the content of the show. According to this, there is attribution that does not fall within the scope of § 12 sentence 1 case 2 BGB.<br />
<br />
84<br />
<br />
3. The judgment of the Court of Appeal that the plaintiff is not entitled to an injunctive relief against the defendant because of an unjustified interference with the asset value of her right to her own name (Art. 1 Para. 1, Art. 2 Para. 1 GG) is free of legal errors.<br />
<br />
85<br />
<br />
a) Outside the scope of § 12 BGB, the use of a person's name in the non-material (cf. BGHZ 143, 214, 218 f. [juris para. 49] - Marlene Dietrich) and - in the case of use for commercial purposes - in interfere with the financial component of the general right of personality according to Art. 1 Para. 1, Art. 2 Para. 1 GG in the expression of the right to one's own name. The general right of personality supplements the existing simple legal regulations (cf. BGHZ 30, 7, 11 [juris para. 15]; on §§ 22, 23 KUG cf. also BGH, judgment of October 13, 2015 - VI ZR 271/14, BGHZ 207, 163 para. 15). Even in the area of application of the right to a name as part of the general right of personality, the legality of an encroachment must be assessed on the basis of a comprehensive weighing of goods and interests, taking into account the legal positions of both sides (cf. BGHZ 143, 214, 219 f. and 230 [juris paras. 51 and 75 ] - Marlene Dietrich, mwN; BGH, judgment of June 5, 2008 - I ZR 96/07, GRUR 2008, 1124 para. 12 and 15 = WRP 2008, 1524 - crumpled cigarette packet; judgment of June 5, 2008 - I ZR 223 /05, WRP 2008, 1567 para. 13 f.; BGH, GRUR 2021, 643 para. 67 - holiday lottery).<br />
<br />
86<br />
<br />
b) The Court of Appeal proceeded from these principles and, in order to weigh up the interests of the plaintiff's right to her own name, referred to his explanations when weighing up the interests of the right to her own image. This is not objectionable because the Court of Appeal already focused on the overall effect of the posters objected to by the plaintiff, in which the use of a picture coincides with the attribution of a name, when assessing the protection of the image. It is not apparent and is not asserted either by the appeal or by the response to the appeal that other aspects should be included in a weighing of interests between the plaintiff's right to its own name and artistic freedom and - additionally - the entrepreneurial freedom of the defendant or a change in the weighting of the points of view would have to be made.<br />
<br />
87<br />
<br />
IV. As a result, the Court of Appeal rightly dismissed the action also after the auxiliary requests (Motions 2 a and 2 b). The plaintiff lacks the need for legal protection for these applications.<br />
<br />
88<br />
<br />
1. The lack of a need for legal protection represents a procedural defect that must be taken into account ex officio. The question of whether there is a legally protected interest in using a court must therefore also be examined in the appeal instance, regardless of whether the defendant has raised a corresponding complaint (cf. BGH, judgment of April 23, 2020 - I ZR 85/19, GRUR 2020, 886 para. 19 = WRP 2020, 1017 - price change regulation, with further reference).<br />
<br />
89<br />
<br />
2. The plaintiff lacks the need for legal protection for the auxiliary requests because the addition of the words "without at the same time adding an addition that excludes any possibility of confusion" does not lead to a change in content compared to the main requests.<br />
<br />
90<br />
<br />
a) Exceptions do not need to be included in the complaint if this alone describes the specific form of infringement. It is not up to the plaintiff to point out to the defendant what he is allowed to do (cf. BGH, judgment of February 11, 2021 - I ZR 227/19, GRUR 2021, 758 para. 18 = WRP 2021, 610 - legal advice from an architect ). However, an over-determination that does not observe this principle is fundamentally harmless - especially with regard to the principle of certainty (cf. BGH, judgment of February 2, 2012 - I ZR 81/10, GRUR 2012, 945 para. 24 f. = WRP 2012, 1222 - Tribenuronmethyl; Judgment of December 12, 2019 - I ZR 173/16, GRUR 2020, 401 para. 13 = WRP 2020, 465 - ÖKO-Test I).<br />
<br />
91<br />
<br />
b) The phrase "without at the same time adding an addition that excludes any possibility of confusion" in the plaintiff's auxiliary requests represents such an overdetermination. In combination with the main requests, however, the plaintiff lacks the need for legal protection for the auxiliary requests. If the inner-procedural condition under which the auxiliary requests are made occurs because the main requests are unsuccessful, they cannot be successful either, because they do not represent an aliud or minus to the main requests, but are identical to them in terms of content.<br />
<br />
92<br />
<br />
C. Thereafter, the revision is to be rejected with the consequences of costs from § 97 Para. 1 ZPO.<br />
</pre></div>2A01:4F8:231:1DE2:0:0:1001:18https://gdprhub.eu/index.php?title=OGH_-_6Ob77/20x&diff=16800OGH - 6Ob77/20x2021-06-29T07:20:16Z<p>2A01:4F8:231:1DE2:0:0:1001:18: /* Background */</p>
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|Original_Source_Link_1=https://www.ris.bka.gv.at/Dokument.wxe?Abfrage=Justiz&Dokumentnummer=JJT_20201125_OGH0002_0060OB00077_20X0000_000<br />
|Original_Source_Language_1=German<br />
|Original_Source_Language__Code_1=DE<br />
<br />
|Date_Decided=25.11.2020<br />
|Date_Published=13.01.2021<br />
|Year=2020<br />
<br />
|GDPR_Article_1=Article 25 GDPR<br />
|GDPR_Article_Link_1=Article 25 GDPR<br />
|GDPR_Article_2=Article 77 GDPR<br />
|GDPR_Article_Link_2=Article 77 GDPR<br />
|GDPR_Article_3=Article 78 GDPR<br />
|GDPR_Article_Link_3=Article 78 GDPR<br />
|GDPR_Article_4=Article 79 GDPR<br />
|GDPR_Article_Link_4=Article 79 GDPR<br />
|GDPR_Article_5=Article 80 GDPR<br />
|GDPR_Article_Link_5=Article 80 GDPR<br />
|GDPR_Article_6=Article 84 GDPR<br />
|GDPR_Article_Link_6=Article 84 GDPR<br />
<br />
|EU_Law_Name_1=Article 267 TFEU<br />
|EU_Law_Link_1=https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E267:en:HTML<br />
<br />
|National_Law_Name_1=§ 28 Austrian Consumer Protection Act (Konsumentenschutzgesetz - KSchG)<br />
|National_Law_Link_1=https://www.ris.bka.gv.at/NormDokument.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10002462&FassungVom=2021-01-15&Artikel=&Paragraf=28&Anlage=&Uebergangsrecht=<br />
|National_Law_Name_2=§ 29 Austrian Consumer Protection Act (Konsumentenschutzgesetz - KSchG)<br />
|National_Law_Link_2=https://www.ris.bka.gv.at/NormDokument.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10002462&FassungVom=2021-01-15&Artikel=&Paragraf=29&Anlage=&Uebergangsrecht=<br />
<br />
|Party_Name_1=Verein für Konsumenteninformation (VKI)<br />
|Party_Link_1=https://verbraucherrecht.at/<br />
|Party_Name_2=<br />
|Party_Link_2=<br />
|Party_Name_3=<br />
|Party_Link_3=<br />
|Party_Name_4=<br />
|Party_Link_4=<br />
|Party_Name_5=<br />
|Party_Link_5=<br />
<br />
<br />
|Appeal_From_Body=<br />
|Appeal_From_Case_Number_Name=<br />
|Appeal_From_Status=OLG<br />
|Appeal_From_Link=<br />
|Appeal_To_Body=<br />
|Appeal_To_Case_Number_Name=<br />
|Appeal_To_Status=Not appealed<br />
|Appeal_To_Link=<br />
|Initial_Contributor=Marco Blocher<br />
|<br />
}}<br />
<br />
The Austrian Supreme Court requested a preliminary ruling from the CJEU on whether Article 80 GDPR hinders organisations, that are entitled to bring class actions under national (consumer protection) law from bringing such lawsuits in data protection cases.<br />
<br />
==English Summary==<br />
<br />
===Background===<br />
The Verein für Konsumenten Information (VKI) is an Austrian consumer rights organisation and entiteld to bring collective redress lawsuits and class actions in the interest of consumers pursuant to §§ 28 and 29 of the Austrian Consumer Protection Act (Konsumentenschutzgesetz - KSchG).<br />
<br />
The VKI brought a lawsuit against two car rental companies due to their allegedly unlawful general terms and conditions, which contained clauses that are (accordning to the VKI) violating Article 25(2) GDPR. The decisions of the first and second court were appealed, the case is currently (January 2021) still pending at the Austrian Supreme Court (Oberster Gerichtshof - OGH), which referred to following question to the CJEU under Article 267 TFEU:<br />
<br />
''Does the GDPR preclude national regulations which, among other things, grant associations the power to take action for violations of the GDPR by way of an action before the civil courts, irrespective of the violation of specific rights of individual data subjects, inter alia from the point of view of the prohibition of the use of ineffective general terms and conditions?''<br />
<br />
===Holding===<br />
The OGH will take its decision in the merits of the case once the CJEU has decided on the requested preliminary ruling. This page will be adapted accordingly then and linked to the CJEU decision which will also be published on GDPRhub.eu.<br />
<br />
==Comment==<br />
''See [https://verbraucherrecht.at/eugh-vorlage-zur-klagsbefugnis-bei-dsgvo-verstoessen/5406 here] for the press relase of the plaintiff (in German).''<br />
<br />
The CJEU might decide that class actions are only possible if the national legislator has made use of the opening clauses in Article 80(1) and (2) GDPR ("closed shop"). In this case, consumer rights associations would be barred from bringing GDPR class actions unless especially provided for by member state law.<br />
<br />
On 27.01.2012, the OGH stayed the procedure in a similar case that revolved around the same issue and is therefore also depending on the CJEU's preliminary ruling. This case can be found [https://www.ris.bka.gv.at/Dokument.wxe?ResultFunctionToken=47f2ea91-6252-4ab8-b011-94701791dd49&Position=1&Abfrage=Justiz&Gericht=&Rechtssatznummer=&Rechtssatz=&Fundstelle=&AenderungenSeit=Undefined&SucheNachRechtssatz=True&SucheNachText=True&GZ=&VonDatum=&BisDatum=&Norm=&ImRisSeitVonDatum=&ImRisSeitBisDatum=&ImRisSeit=Undefined&ResultPageSize=100&Suchworte=DSGVO&Dokumentnummer=JJT_20210127_OGH0002_0070OB00175_20S0000_000 here] (in German).<br />
<br />
==Further Resources==<br />
''Share blogs or news articles here!''<br />
<br />
==English Machine Translation of the Decision==<br />
The decision below is a machine translation of the German original. Please refer to the German original for more details.<br />
<br />
<pre><br />
Court<br />
SUPREME COURT<br />
<br />
Legal record number<br />
RS0133358<br />
<br />
Date of decision<br />
25.11.2020<br />
<br />
Reference number<br />
6Ob77/20x<br />
<br />
Norm<br />
TFEU Lisbon Art267; KSchG §28; KSchG §29; DSGVO Art25; DSGVO Art77; DSGVO Art78; DSGVO Art79; DSGVO Art80; DSGVO Art84<br />
<br />
Legal sentence<br />
The following question is referred to the Court of Justice of the European Union for a preliminary ruling pursuant to Article 267 TFEU:<br />
<br />
Do the provisions in Chapter VIII, in particular in Art. 80 para.1 and 2 and Art. 84(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data, on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation, OJ L 119/1 of 4 May 2016, p. 1; hereinafter "GDPR") preclude national regulations which, in addition to the powers of intervention of the supervisory authorities responsible for monitoring and enforcing the Regulation and the legal protection options of the data subjects, grant, on the one hand, competitors and, on the other hand, associations, bodies and chambers authorized under national law the power to to take action for infringements of the GDPR, irrespective of the infringement of specific rights of individual data subjects and without a mandate from a data subject, against the infringer by way of an action before the civil courts under the aspects of the prohibition on engaging in unfair commercial practices or the infringement of a consumer protection law or the prohibition on using ineffective general terms and conditions?<br />
<br />
Decision Text TE OGH 2020-11-25 6 Ob 77/20x<br />
<br />
European Case Law IdentifierECLI:AT:OGH0002:2020:RS0133358<br />
</pre></div>2A01:4F8:231:1DE2:0:0:1001:18https://gdprhub.eu/index.php?title=Article_77_GDPR&diff=16250Article 77 GDPR2021-06-01T07:50:03Z<p>2A01:4F8:231:1DE2:0:0:1001:18: /* Alleged infringement */</p>
<hr />
<div>{| class="wikitable" style="width: 25%; margin-left: 10px; float:right;"<br />
![[Article 76 GDPR|←]] Article 77 - Right to lodge a complaint with a supervisory authority [[Article 78 GDPR|→]]<br />
|-<br />
|style="padding: 20px; background-color:#003399;"|[[File:Gdpricon.png|100px|center|link=Overview_of_GDPR]]<br />
|-<br />
|<br />
<br />
<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px"><br />
<div style="font-weight:bold;line-height:1.6;">Chapter 1: General provisions</div><br />
<div class="mw-collapsible-content"><br />
<small><br />
[[Article 1 GDPR|Article 1: Subject-matter and objectives]]<br /><br />
[[Article 2 GDPR|Article 2: Material scope]]<br /><br />
[[Article 3 GDPR|Article 3: Territorial scope]]<br /><br />
[[Article 4 GDPR|Article 4: Definitions]]<br /><br />
</small><br />
</div></div><br />
<br />
<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px"><br />
<div style="font-weight:bold;line-height:1.6;">Chapter 2: Principles</div><br />
<div class="mw-collapsible-content"><br />
<small><br />
[[Article 5 GDPR|Article 5: Principles relating to processing of personal data]]<br /><br />
[[Article 6 GDPR|Article 6: Lawfulness of processing]]<br /><br />
[[Article 7 GDPR|Article 7: Conditions for consent]]<br /><br />
[[Article 8 GDPR|Article 8: Conditions applicable to child’s consent in relation to information society services]]<br /><br />
[[Article 9 GDPR|Article 9: Processing of special categories of personal data]]<br /><br />
[[Article 10 GDPR|Article 10: Processing of personal data relating to criminal convictions and offences]]<br /><br />
[[Article 11 GDPR|Article 11: Processing which does not require identification]]<br /><br />
</small><br />
</div></div><br />
<br />
<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px"><br />
<div style="font-weight:bold;line-height:1.6;">Chapter 3: Rights of the data subject</div><br />
<div class="mw-collapsible-content"><br />
<small><br />
[[Article 12 GDPR|Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject]]<br /><br />
[[Article 13 GDPR|Article 13: Information to be provided where personal data are collected from the data subject]]<br /><br />
[[Article 14 GDPR|Article 14: Information to be provided where personal data have not been obtained from the data subject]]<br /><br />
[[Article 15 GDPR|Article 15: Right of access by the data subject]]<br /><br />
[[Article 16 GDPR|Article 16: Right to rectification]]<br /><br />
[[Article 17 GDPR|Article 17: Right to erasure (‘right to be forgotten’)]]<br /><br />
[[Article 18 GDPR|Article 18: Right to restriction of processing]]<br /><br />
[[Article 19 GDPR|Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing]]<br /><br />
[[Article 20 GDPR|Article 20: Right to data portability]]<br /><br />
[[Article 21 GDPR|Article 21: Right to object]]<br /><br />
[[Article 22 GDPR|Article 22: Automated individual decision-making, including profiling]]<br /><br />
[[Article 23 GDPR|Article 23: Restrictions]]<br /><br />
</small><br />
</div></div><br />
<br />
<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px"><br />
<div style="font-weight:bold;line-height:1.6;">Chapter 4: Controller and processor</div><br />
<div class="mw-collapsible-content"><br />
<small><br />
[[Article 24 GDPR|Article 24: Responsibility of the controller]]<br /><br />
[[Article 25 GDPR|Article 25: Data protection by design and by default]]<br /><br />
[[Article 26 GDPR|Article 26: Joint controllers]]<br /><br />
[[Article 27 GDPR|Article 27: Representatives of controllers or processors not established in the Union]]<br /><br />
[[Article 28 GDPR|Article 28: Processor]]<br /><br />
[[Article 29 GDPR|Article 29: Processing under the authority of the controller or processor]]<br /><br />
[[Article 30 GDPR|Article 30: Records of processing activities]]<br /><br />
[[Article 31 GDPR|Article 31: Cooperation with the supervisory authority]]<br /><br />
[[Article 32 GDPR|Article 32: Security of processing]]<br /><br />
[[Article 33 GDPR|Article 33: Notification of a personal data breach to the supervisory authority]]<br /><br />
[[Article 34 GDPR|Article 34: Communication of a personal data breach to the data subject]]<br /><br />
[[Article 35 GDPR|Article 35: Data protection impact assessment]]<br /><br />
[[Article 36 GDPR|Article 36: Prior consultation]]<br /><br />
[[Article 37 GDPR|Article 37: Designation of the data protection officer]]<br /><br />
[[Article 38 GDPR|Article 38: Position of the data protection officer]]<br /><br />
[[Article 39 GDPR|Article 39: Tasks of the data protection officer]]<br /><br />
[[Article 40 GDPR|Article 40: Codes of conduct]]<br /><br />
[[Article 41 GDPR|Article 41: Monitoring of approved codes of conduct]]<br /><br />
[[Article 42 GDPR|Article 42: Certification]]<br /><br />
[[Article 43 GDPR|Article 43: Certification bodies]]<br /><br />
</small><br />
</div></div><br />
<br />
<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px"><br />
<div style="font-weight:bold;line-height:1.6;">Chapter 5: Transfers of personal data</div><br />
<div class="mw-collapsible-content"><br />
<small><br />
[[Article 44 GDPR|Article 44: General principle for transfers]]<br /><br />
[[Article 45 GDPR|Article 45: Transfers on the basis of an adequacy decision]]<br /><br />
[[Article 46 GDPR|Article 46: Transfers subject to appropriate safeguards]]<br /><br />
[[Article 47 GDPR|Article 47: Binding corporate rules]]<br /><br />
[[Article 48 GDPR|Article 48: Transfers or disclosures not authorised by Union law]]<br /><br />
[[Article 49 GDPR|Article 49: Derogations for specific situations]]<br /><br />
[[Article 50 GDPR|Article 50: International cooperation for the protection of personal data]]<br /><br />
</small><br />
</div></div><br />
<br />
<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px"><br />
<div style="font-weight:bold;line-height:1.6;">Chapter 6: Supervisory authorities</div><br />
<div class="mw-collapsible-content"><br />
<small><br />
[[Article 51 GDPR|Article 51: Supervisory authority]]<br /><br />
[[Article 52 GDPR|Article 52: Independence]]<br /><br />
[[Article 53 GDPR|Article 53: General conditions for the members of the supervisory authority]]<br /><br />
[[Article 54 GDPR|Article 54: Rules on the establishment of the supervisory authority]]<br /><br />
[[Article 55 GDPR|Article 55: Competence]]<br /><br />
[[Article 56 GDPR|Article 56: Competence of the lead supervisory authority]]<br /><br />
[[Article 57 GDPR|Article 57: Tasks]]<br /><br />
[[Article 58 GDPR|Article 58: Powers]]<br /><br />
[[Article 59 GDPR|Article 59: Activity reports]]<br /><br />
</small><br />
</div></div><br />
<br />
<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px"><br />
<div style="font-weight:bold;line-height:1.6;">Chapter 7: Cooperation and consistency</div><br />
<div class="mw-collapsible-content"><br />
<small><br />
[[Article 60 GDPR|Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned]]<br /><br />
[[Article 61 GDPR|Article 61: Mutual assistance]]<br /><br />
[[Article 62 GDPR|Article 62: Joint operations of supervisory authorities]]<br /><br />
[[Article 63 GDPR|Article 63: Consistency mechanism]]<br /><br />
[[Article 64 GDPR|Article 64: Opinion of the Board]]<br /><br />
[[Article 65 GDPR|Article 65: Dispute resolution by the Board]]<br /><br />
[[Article 66 GDPR|Article 66: Urgency procedure]]<br /><br />
[[Article 67 GDPR|Article 67: Exchange of information]]<br /><br />
[[Article 68 GDPR|Article 68: European Data Protection Board]]<br /><br />
[[Article 69 GDPR|Article 69: Independence]]<br /><br />
[[Article 70 GDPR|Article 70: Tasks of the Board]]<br /><br />
[[Article 71 GDPR|Article 71: Reports]]<br /><br />
[[Article 72 GDPR|Article 72: Procedure]]<br /><br />
[[Article 73 GDPR|Article 73: Chair]]<br /><br />
[[Article 74 GDPR|Article 74: Tasks of the Chair]]<br /><br />
[[Article 75 GDPR|Article 75: Secretariat]]<br /><br />
[[Article 76 GDPR|Article 76: Confidentiality]]<br /><br />
</small><br />
</div></div><br />
<br />
<div class="toccolours mw-collapsible" overflow:auto;" style="border-width: 0px"><br />
<div style="font-weight:bold;line-height:1.6;">Chapter 8: Remedies, liability and penalties</div><br />
<div class="mw-collapsible-content"><br />
<small><br />
[[Article 77 GDPR|Article 77: Right to lodge a complaint with a supervisory authority]]<br /><br />
[[Article 78 GDPR|Article 78: Right to an effective judicial remedy against a supervisory authority]]<br /><br />
[[Article 79 GDPR|Article 79: Right to an effective judicial remedy against a controller or processor]]<br /><br />
[[Article 80 GDPR|Article 80: Representation of data subjects]]<br /><br />
[[Article 81 GDPR|Article 81: Suspension of proceedings]]<br /><br />
[[Article 82 GDPR|Article 82: Right to compensation and liability]]<br /><br />
[[Article 83 GDPR|Article 83: General conditions for imposing administrative fines]]<br /><br />
[[Article 84 GDPR|Article 84: Penalties]]<br /><br />
</small><br />
</div></div><br />
<br />
<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px"><br />
<div style="font-weight:bold;line-height:1.6;">Chapter 9: Specific processing situations</div><br />
<div class="mw-collapsible-content"><br />
<small><br />
[[Article 85 GDPR|Article 85: Processing and freedom of expression and information]]<br /><br />
[[Article 86 GDPR|Article 86: Processing and public access to official documents]]<br /><br />
[[Article 87 GDPR|Article 87: Processing of the national identification number]]<br /><br />
[[Article 88 GDPR|Article 88: Processing in the context of employment]]<br /><br />
[[Article 89 GDPR|Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes]]<br /><br />
[[Article 90 GDPR|Article 90: Obligations of secrecy]]<br /><br />
[[Article 91 GDPR|Article 91: Existing data protection rules of churches and religious associations]]<br /><br />
</small><br />
</div></div><br />
<br />
<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px"><br />
<div style="font-weight:bold;line-height:1.6;">Chapter 10: Delegated and implementing acts</div><br />
<div class="mw-collapsible-content"><br />
<small><br />
[[Article 92 GDPR|Article 92: Exercise of the delegation]]<br /><br />
[[Article 93 GDPR|Article 93: Committee procedure]]<br /><br />
</small><br />
</div></div><br />
<br />
<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px"><br />
<div style="font-weight:bold;line-height:1.6;">Chapter 11: Final provisions</div><br />
<div class="mw-collapsible-content"><br />
<small><br />
[[Article 94 GDPR|Article 94: Repeal of Directive 95: /46: /EC]]<br /><br />
[[Article 95 GDPR|Article 95: Relationship with Directive 20: 02: /58: /EC]]<br /><br />
[[Article 96 GDPR|Article 96: Relationship with previously concluded Agreements]]<br /><br />
[[Article 97 GDPR|Article 97: Commission reports]]<br /><br />
[[Article 98 GDPR|Article 98: Review of other Union legal acts on data protection]]<br /><br />
[[Article 99 GDPR|Article 99: Entry into force and application]]<br /><br />
</small><br />
</div><br />
</div><br />
|}<br />
<br />
== Legal Text ==<br />
<br /><center>'''Article 77 - Right to lodge a complaint with a supervisory authority'''</center><br /><br />
<br />
<span id="1">1. Without prejudice to any other administrative or judicial remedy, every data subject shall have the right to lodge a complaint with a supervisory authority, in particular in the Member State of his or her habitual residence, place of work or place of the alleged infringement if the data subject considers that the processing of personal data relating to him or her infringes this Regulation.</span><br />
<br />
<span id="2">2. The supervisory authority with which the complaint has been lodged shall inform the complainant on the progress and the outcome of the complaint including the possibility of a judicial remedy pursuant to Article 78.</span><br />
<br />
== Relevant Recitals==<br />
<span id="r141"><br />
<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;"><div>'''Recital 141:''' Right to lodge a complaint - Article 77(1) and information on outcome/progress of the complaint - Article 77(2)</div><br />
<div class="mw-collapsible-content"><br />
Every data subject should have the right to lodge a complaint with a single supervisory authority, in particular in the Member State of his or her habitual residence, and the right to an effective judicial remedy in accordance with Article 47 of the Charter if the data subject considers that his or her rights under this Regulation are infringed or where the supervisory authority does not act on a complaint, partially or wholly rejects or dismisses a complaint or does not act where such action is necessary to protect the rights of the data subject. The investigation following a complaint should be carried out, subject to judicial review, to the extent that is appropriate in the specific case. The supervisory authority should inform the data subject of the progress and the outcome of the complaint within a reasonable period. If the case requires further investigation or coordination with another supervisory authority, intermediate information should be given to the data subject. In order to facilitate the submission of complaints, each supervisory authority should take measures such as providing a complaint submission form which can also be completed electronically, without excluding other means of communication.<br />
</div></div><br />
<br />
== Commentary ==<br />
<br />
=== Overview ===<br />
Article 77'''(1)''' GDPR stipulates the data subject’s right to lodge a complaint with a DPA if the data subject suspects a GDPR violation regarding personal data relating to him or her; Article 77'''(2)''' GDPR places the DPA with which the complaint has been lodged under an obligation to inform the complainant on the progress and the outcome of the complaint.<br />
<br />
Both Article 77(1) and (2) GDPR are directly applicable and do not require transposition into national law. However, the details of the complaints procedure are subject to Member State law, which must observe the requirements and objectives of the GDPR.<ref>Kühling/Buchner/Bergt GDPR Art. 77 margin number 26.</ref><br />
<br />
Under Article 57(3) GDPR, the lodging of a complaint and its handling by a DPA shall be free of charge for the data subject, which must be respected by the national procedural law.<br />
<br />
Many DPAs provide forms that ensure that a complainant includes all relevant information as suggested in the last sentence of Recital 141 GDPR.<br />
<br />
=== Right to a formal complaint ===<br />
<br />
==== Requirements ====<br />
Article 77(1) GDPR only has two requirements: (1) A data subject must consider that (2) his or her personal data has been processed in violation of GDPR.<br />
<br />
===== Data subject =====<br />
The complainant must be a data subject within the meaning of Article 4(1) GDPR, i.e. an identified or identifiable natural person.<br />
<br />
As only an investigation of the facts can determine if the data of the complainant has actually been processed, the complainant must de facto only allege that he or she qualifies as a data subject. This is especially relevant in cases where the complainant is not even capable of assessing his or her status as a data subject – e.g. when a controller has simply ignored an access request under Article 15 GDPR and the complainant has no knowledge on whether the controller actually processes his or her personal data.<br />
<br />
===== Alleged infringement =====<br />
The data subject must at least allege that his or her data is processed in violation of the GDPR. The letter of the law requires that the processing of personal data relating to the data subject infringe the GDPR. <br />
<br />
Contrary to the prevailing opinion among legal scholars,<ref>Kühling/Buchner/Bergt GDPR Art. 77 margin number 10; Ehmann/Selmayr/Nemitz DS-GVO Art. 77 margin number 16; Auernhammer/von Lewinksi GDPR Art. 77 margin number 2; DatKomm/Schweiger GDPR Art. 77 margin number 11.</ref> some DPAs have taken the stance that the right to lodge a complaint is limited to violations of data subject rights under Chapter III of the GDPR (“Rights of the data subject“)<ref>E.g. the Austrian DPA, 13.09.2018, DSB-D123.070/0005-DSB/2018 (ECLI:AT:DSB:2018:DSB.D123.070.0005.DSB.2018).</ref>. The academic opinion seems more convincing for the following reasons:<br />
<br />
First, the language of Article 77(1) GDPR does not contain any limitations to violations of Chapter III rights.<br />
<br />
Second, Article 8(2) CFR already foresees that personal data “''must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law.''” These requirements are laid down in detail in Article 5 to 10 GDPR. In light of Article 41 and Article 47 CFR, limiting complaints to the violation of Chapter III GDPR would therefore violate not only the GDPR but also primary EU law.<br />
<br />
Third, a limitation to violations of Chapter III rights would also result in massive enforcement deficiencies. A data subject would have no possibility to have certain processing activities reviewed by a DPA. For example, a processing activity that is based on an algorithm that produces incorrect data on a regular basis could not be addressed under Article 16 GDPR as Article 16 can only be invoked to rectify existing inaccurate data but not to stop the ongoing creation of incorrect data that is based on existing correct data. In this case, the data subject would have to rely directly on the principle of accuracy under Article 5(1)(d) GDPR in connection with Article 24, 25 GDPR and ask the DPA to order the controller to bring the processing operation into compliance with the GDPR under Article 58(2)(d) GDPR or even ban it under Article 58(2)(f) GDPR.<br />
<br />
Therefore, complaints under Article 77 GDPR should extend to a broad range of violations concerning, amongst the others:<ref>See especially DatKomm/Schweiger GDPR Art. 77 margin number 11.</ref><br />
<br />
* the principles of data processing (Article 5 GDPR),<br />
* the lawfulness of processing (Article 6, 9 and 10 GDPR),<br />
* the conditions for consent (Article 7 and 8 GDPR),<br />
* information under Article 11(2) GDPR,<br />
* provisions of Chapter III of the GDPR (Article 12 to 22 GDPR),<br />
* the duty to communicate a personal data breach to the data subject (Article 34 GDPR),<br />
* the provisions on data transfers to a third countries or international organisations under Chapter V of the GDPR (Article 44 et seqq. GDPR).<br />
<br />
==== Jurisdiction for filing the case ====<br />
<br />
===== A(ny) DPA =====<br />
The GDPR only requires that a supervisory authority (DPA) is addressed by the complaint. This general rule is only limited by a non-exhaustive list of possible DPAs. This means that a complainant may file a complaint with any DPA in the EEA, independent of location.<ref>Kühling/Buchner/Bergt GDPR Art. 77 margin number 9.</ref><br />
<br />
===== Habitual residence =====<br />
The most common place to lodge a complaint is the home jurisdiction of the complainant. The habitual residence is defined in different EU laws and requires a legal right to residence and an objective assessment of the factual residence. Especially in cross border cases, data subjects might want to choose to lodge complaints at the place of their habitual residence, at this allows for the data subject to file the complaint in (one of) the official languages of the relevant Member State, rather than the official language of the Member State that the controller is based in. <br />
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===== Place of work =====<br />
Similar to the habitual residence, complainants can lodge a complaint at their work place. It is not required that the complaint has any connection to the place of work.<br />
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===== Place of alleged infringement =====<br />
The complaint can be lodged at the place of the alleged infringement. This clause is a typical form of jurisdiction that is aimed at aligning location of the decision maker with the location of facts.<blockquote><u>Example:</u> The DPA that is close to a CCTV camera may be best placed to gather factual evidence on the CCTV system, without the need to request mutual assistance from other DPAs.</blockquote><br />
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===== Cross country cases =====<br />
The option to lodge a case with any DPA does not mean that the DPA with which the case has been lodged necessarily decides about the case. Which DPA actually handles the case is subject to Article 55 and 56 GDPR. In any case the DPA with which the complaint has been lodged remains a “supervisory authority concerned” under Article 4(22)(c) GDPR and the point of contact for the data subject (“one stop shop”). <br />
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=== Duty to inform the data subject ===<br />
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==== Progress and outcome ====<br />
Under Article 77(2) GDPR “''the supervisory authority with which the complaint has been lodged shall inform the complainant on the progress and the outcome of the complaint including the possibility of a judicial remedy pursuant to Article 78.''” This provision only addresses the DPA with which the complaint has been lodged but not the DPA ultimately handling the case under Article 55 and 56 GDPR (which might be the same or a different DPA).<br />
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The DPA’s report on the progress must include information on the possibility for a judicial remedy under Article 78(2) GDPR, its report on the outcome should contain information on the possibility for a judicial remedy under Article 78(1) GDPR.<br />
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==== Timeline and frequency of information ====<br />
Article 77(2) does not stipulate a deadline by which the data subject has to be initially informed about the progress of the complaint, nor does it contain rules on the frequency of such “progress reports”. Read in connection with Article 57(1)(f) GDPR (“[…] ''inform the complainant of the progress and the outcome of the investigation within a reasonable period,'' […]”) , the DPA must inform the data subject within a reasonable period.<br />
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Moreover, under Article 78(2) GDPR a data subject has the right to an effective judicial remedy where the DPA which is competent pursuant to Article 55 and 56 GDPR does not inform the data subject within three months on the progress or outcome of the complaint lodged pursuant to Article 77 GDPR. It must be noted, that other than Article 77(2) GDPR, Article 78(2) does not address the DPA with which the complaint has been lodged but rather the DPA that is competent to handle the case under Article 55 and 56 GDPR.<br />
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This results in the following scenarios:<br />
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* The DPA with which the complaint has been lodged is also competent to handle the case under Article 55 GDPR: In this case, the DPA has to inform the data within three months after receipt of the complaint on its progress or outcome under Article 78(2) GDPR.<br />
* The DPA with which the complaint has been lodged is not competent to handle the case but rather the lead DPA under Article 56 is:<br />
** The DPA with which the complaint has been lodged must inform the data subject under Article 77(2) GDPR. The first information usually is an acknowledgement of receipt and a notice that the case has been forwarded to an (alleged) lead LSA. Although there is no specific deadline for this information, the three-month period of Article 78(2) GDPR should be applied ''per analogiam.''<br />
** As soon as the lead DPA is established (which very often takes longer than three months), it must inform the data subject within three months after receipt of the complaint on its progress or outcome under Article 78(2) GDPR. For practical reasons the DPA with which the complaint has been lodged usually informs the data subject on behalf of the lead DPA on this.<br />
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== Decisions ==<br />
→ You can find all related decisions in [[:Category:Article 77 GDPR]]<br />
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== References ==<br />
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[[Category:GDPR Articles]]</div>2A01:4F8:231:1DE2:0:0:1001:18