VG Schwerin - 1 A 1343/19 SN

VG Schwerin - 1 A 1343/19 SN
Court:	VG Schwerin (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 4(1) GDPR Article 15(1) GDPR Article 15(3) GDPR Article 15(4) GDPR Article 58(2) GDPR § 2 UrhG § 17 UrhG § 19a UrhG § 31 UrhG
Decided:	29.04.2021
Published:
Parties:
National Case Number/Name:	1 A 1343/19 SN
European Case Law Identifier:	ECLI:DE:VGSCHWE:2021:0429.1A1343.19.00
Appeal from:
Appeal to:
Original Language(s):	German
Original Source:	landesrecht-mv.de (in German)
Initial Contributor:	Lejla Rizvanovik

Sections 15, Paragraph 2, No. 2, 19 a UrhG do not preclude disclosure because it does not affect the right to make them publicly available, since the expert opinion should only be made known to the party invited.

English Summary

Facts

The plaintiff (responsible person) has obtained an expert opinion that, after a decision by the defendant (data protection authority) it is now to be returned to the owner of the property in question (joined party to 1). The lawsuit is directed against the defendant's decision.

Dispute

It is apparent from paragraph 24 to 34 of the judgment that, such statements that provide a subjective and / or objective assessment of an identified or identifiable person also have a personal reference. In particular, the distinction between the factual data and the personal data. Accordingly, the personal reference can result from a content, purpose or element. The content element is realized when there is a direct personal reference when statements are made about a person, and the indirect personal reference is to be assumed when relational statements are made; for example when making a statement about the value of a property. A purpose element is given if the information makes it possible to assess, treat or influence a person. This is particularly assumed when various pieces of information are linked in order, for example, to recognize patterns and to create corresponding analyzes based on which the interaction with a person is taking place. The result element is achieved if - regardless of a content or purpose element - there is the possibility that the information can affect the rights and interests of a specific person, for example in the case of information about the economic use and exploitation of real estate. The plaintiff's view that there is a factual date even if the information relates to an object and a link to a natural person can only be established through intermediate steps contradicts the principles set out and in particular the case law of the European Court of Justice and must therefore be rejected. Conversely, inferring from this that any information that relates to a person or enables identification is fundamentally protected under data protection law. Applying the criteria mentioned, it is justified to regard the expert opinion at issue here as a personal data. It is not a factual date, as the plaintiff thinks. Indirect personal information is available by recording the individual and unique state of the property of the joined party to 1 in detail and linking it to his address. The appraisal was created specifically for the purpose of recording the assets and property of the party summoned to 1., by means of which the appraisal of the property-related condition at a certain point in time was recorded in order to preserve evidence. The object is currently being examined with regard to later disputes with the authorized person, whereby the content element is also realized at the same time. In this way, all of the determining elements according to the jurisprudence of the European Court of Justice are fulfilled and there is clearly a personal data.

Holding

The court held, that handing over a complete copy (Art. 15 Para. 3 GDPR) of a real estate evidence preservation report according to Art. 58 Para. 2 Letter c GDPR to the owner of an examined object is lawful.

Comment

It is apparent from paragraph 54 to 57 of the judgment that, the scope of the claim extends to the publication of the complete report in accordance with Art. 15 Para. 3 GDPR. What is meant by "copy" according to Art. 15 Para. 3 GDPR is controversial. According to an extensive view, all stored and / or processed personal data must be transmitted in the present raw version. According to the restrictive opposing view, Art. 15 Paragraph 3 Clause 1 GDPR only regulates a special form of information and only refers to the information from Paragraph 1, which does not, however, contain a claim to complete data information, but only to an overview of the data. The court has already stated above that it assumes that the GDPR is based on an extensive understanding of personal data. The restrictive view that information only has to be given in the form of an overview of the stored information is therefore to be rejected. From the point of view of the court, it can be left open whether Art. 15 Para. 3 GDPR represents an independent claim or just an extension of the right to information contained in Art. 15 Para. 1 GDPR. Because personal data should be comprehensively protected. This protection can only be implemented consistently if information about the completely stored data is given. Applying the point of view set out above, it is justified to regard the expert opinion in its entirety as covered by the right to a copy. In its sum and in its individual components, this represents factual information with regard to the property and financial situation of the party summoned to 1. The following decision is questionable: Recital 62 of the GDPR does not conflict with the information in the present case. According to this, there is no obligation to provide information if the person concerned already has the information. However, this consideration can only come into play if the requested information is known to the person seeking information in the form specifically requested. The joined party to 1. is the owner of the object that was examined and can therefore basically convince himself of the condition. However, this is irrelevant for the present data protection assessment. Rather, it depends on the specific information that has been stored or processed. Even if it were assumed that the intervened party to 1. heard the complete information of the recorded dictation of the intervened party to 2. and that this was sufficient to assume knowledge of the information, this information would not be identical to the expert opinion at issue. In the report, photos and descriptions were summarized in a complete work from various sources (camera and dictation recording). This in turn represents an independent processing within the meaning of the GDPR, of the result of which the party invited to 1. has no knowledge.

No agreements on usage and exploitation rights have been proven. In addition, it is questionable whether an expert report is even protected by copyright under national law. The fact that the summoned party to 2. - represented by his employee - stated in the oral hearing that the release for surrender would regularly be given after the client's request, does not contradict this assessment. The refusal by the party summoned under 2. to pass on a copy of the report to the summoned person under 1. would also constitute a violation of good faith in accordance with Section 34 (1) sentence 2 UrhG. A violation of good faith exists if there is no legitimate reason to refuse consent. The limit is where the refusal of consent - also taking into account the custom of § 242 BGB - appears unreasonable. A comprehensive weighing of the interests of both parties is crucial. In particular, the author should not be able to abuse the reservation of his consent to prevent a right of use for no reason, although his interests are not impaired in any way (see BeckOK UrhR / Soppe, 29th Ed.15 June 2020 Rn. 11, UrhG § 34 No. 11). The request for information from the summoned party to 1. is not abusive and therefore does not conflict with the defendant's order in accordance with Art. 12 (5) sentence 2 GDPR. The plaintiff must admit that the original purpose of the right to information is the legality control with regard to the processing of personal data (see recital 63 of the GDPR). However, the pursuit of a related purpose does not justify the objection of abuse of law. The motives for a request for information do not have to be disclosed, so this cannot be a weighing criterion. Accordingly, it has been recognized by the case law that it is harmless if the person concerned shows that he is requesting the relevant data to prepare for a legal dispute or to improve his position in such a dispute.

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.