VG Schwerin - 1 A 1343/19 SN: Difference between revisions

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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

The court ruled that a data subject is entitled to a copy of an expert report on his building commissioned by a neighbour. This is not precluded by recital 62(1) GDPR, copyright law or the prohibition of abusive conduct.

English Summary

Facts

The plaintiff planned the construction of a nursing home. For this purpose, he commissioned an expert office to prepare an expert opinion on the structural and functional condition of the neighbouring building with regard to existing damage. This building is owned by the data subject.

The data subject requested the plaintiff to provide a copy of the expert report. The plaintiff refused to do so. The data subject then requested the assistance of the competent DPA. The DPA decided that the plaintiff was obliged to provide a copy of the expert report under Article 15(3) GDPR.

The present lawsuit is directed against this decision.

Holding

The court ruled that the data subject had a claim against the plaintiff under Article 15(3) GDPR.

Expert Opinion as Personal Data Within the Meaning of Article 4(1) GDPR

The Administrative Court of Schwerin (VG Schwerin) first finds that the expert opinion is personal data under Article 4(1) GDPR.

For this purpose, it distinguishes between factual data and personal data. With reference to ECJ case law, the court explains that the delimitation is to be based on a context-related approach. Accordingly, the personal reference could result from an element of content, purpose or result, a combination of those elements or the realisation of all elements.

The content element is realized when direct or indirect information about a person is given. Indirect reference to a person is assumed if statements are made about relationships, such as a statement about the value of a property. The 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, for example, to recognise patterns and to create corresponding analyses based on which the interaction with a person is taking place. The result element is realised if 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.

In the court's opinion, all elements were fulfilled. By stating the address in the expert opinion, the data subject was clearly identifiable (geo-referencing), so that the content element was given. The expert report had been prepared for the purpose of recording property. This should enable later conclusions to be drawn about changes to a specific property condition or the property and ownership relationships at specific times of assessment by documenting connecting facts for a before-and-after view. The property was appraised precisely with regard to later disputes with the beneficiary. In this respect, the purpose and result elements were also fulfilled.

Recital 62(1) GDPR Does Not Preclude the Claim to a Copy

The court found that Recital 62(1) GDPR did not preclude the data subject’s claim. According to this, a right to information does not exists if the data subject already has the information. However, according to the court, this presupposes that the data subject is aware of the desired information in the specific form requested.

This was not the case here. It is true that the data subject as the owner of the building in question can examine its condition by himself anytime. However, this was irrelevant. The summaries of the photos and descriptions in the expert report constitute an independent processing of data. The data subject would not have access to this concrete information without the expert opinion.

No Conflicting Copyright of the Expert

The court then ruled that the expert's copyright did not preclude the right of access under Article 15(4) GDPR.

According to this provision, the receipt of a copy must not adversely affect the rights and freedoms of others. For further clarification, the court refers to Recital 63(5) of the GDPR. According to this, intellectual property rights may not be adversely affected by rights of access. However, Recital 63(6) of the GDPR requires a comprehensive balancing with the fundamental rights and freedoms of third parties. The rights and freedoms of other persons must not lead to the data subject being denied information.

In the opinion of the court, copyrights were not opposed in the present case for two reasons:

Firstly, the court already doubts whether an expert opinion is worthy of copyright protection at all. § 2 of the German Copyright Act (UrhG), which is relevant in this respect, protects scientific linguistic works only to a limited extent, namely in the form of formulations that are an expression of an individual (linguistic) creation as opposed to technical language.

Secondly, the court states that even if copyright protection is assumed, there is no copyright conflicting.

On the one hand, the plaintiff, who has the burden of proof, did not prove in the specific case that a right of use or utilization had been agreed between the expert and the plaintiff.

On the other hand, there were no statutory provisions of the UrhG (§ 15(2)(2), § 19a UrhG; § 15(1)(2), § 17 UrhG) that prevented the provision of the work. The court subsequently examined these in more detail, which, however, will not be examined in more detail here due to the lack of relevance to data protection. In particular, the court stated that the expert opinion cannot fulfil the purpose of preserving evidence if it is not disclosed equally between the parties directly affected (plaintiff and data subject). The expert opinion is intended to establish the condition of the building and any existing damage prior to the commencement of the plaintiff's construction work by an independent third party, so that uniform and undisputed connecting facts can be used as a basis between the parties involved in subsequent legal disputes. The expert opinion therefore also served the interests of the data subjects, which is why they could also base their right to information on the principle of "equality of arms".

No Abuse of Rights Under Article 12(5) GDPR

Ultimately, the court examines whether the right to information is abusive in accordance with Article 12(5) GDPR and denies this.

In principle, the right to information serves to control the lawfulness of the processing of personal data. However, the pursuit of a secondary purpose does not yet meet the objection of abuse of rights. Rather, the motives for a request for information do not have to be disclosed at all, so that it cannot be relevant for the weighing. Accordingly, the court refers to the prevailing German case law, according to which it is irrelevant if the data subject indicates that they are requesting the data in order to prepare a legal dispute or to improve their position in such a dispute.

Comment

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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.

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-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.
+The court ruled that a data subject is entitled to a copy of an expert report on his building commissioned by a neighbour. This is not precluded by recital 62(1) GDPR, copyright law or the prohibition of abusive conduct.
 == 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.
+The plaintiff planned the construction of a nursing home. For this purpose, he commissioned an expert office to prepare an expert opinion on the structural and functional condition of the neighbouring building with regard to existing damage. This building is owned by the data subject.
-=== Dispute ===
+The data subject requested the plaintiff to provide a copy of the expert report. The plaintiff refused to do so. The data subject then requested the assistance of the competent DPA. The DPA decided that the plaintiff was obliged to provide a copy of the expert report under [[Article 15 GDPR|Article 15(3) GDPR]].
-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.
+The present lawsuit is directed against this decision.
 === 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.
+The court ruled that the data subject had a claim against the plaintiff under [[Article 15 GDPR|Article 15(3) GDPR]].
+==== Expert Opinion as Personal Data Within the Meaning of [[Article 4 GDPR|Article 4(1) GDPR]] ====
+The Administrative Court of Schwerin (VG Schwerin) first finds that the expert opinion is personal data under [[Article 4 GDPR|Article 4(1) GDPR]].
+For this purpose, it distinguishes between factual data and personal data. With reference to ECJ case law, the court explains that the delimitation is to be based on a context-related approach. Accordingly, the personal reference could result from an element of content, purpose or result, a combination of those elements or the realisation of all elements.
+The content element is realized when direct or indirect information about a person is given. Indirect reference to a person is assumed if statements are made about relationships, such as a statement about the value of a property. The 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, for example, to recognise patterns and to create corresponding analyses based on which the interaction with a person is taking place. The result element is realised if 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.
+In the court's opinion, all elements were fulfilled. By stating the address in the expert opinion, the data subject was clearly identifiable (geo-referencing), so that the content element was given. The expert report had been prepared for the purpose of recording property. This should enable later conclusions to be drawn about changes to a specific property condition or the property and ownership relationships at specific times of assessment by documenting connecting facts for a before-and-after view. The property was appraised precisely with regard to later disputes with the beneficiary. In this respect, the purpose and result elements were also fulfilled.
+==== Recital 62(1) GDPR Does Not Preclude the Claim to a Copy ====
+The court found that Recital 62(1) GDPR did not preclude the data subject’s claim. According to this, a right to  information does not exists if the data subject already has the information. However, according to the court, this presupposes that the data subject is aware of the desired information in the specific form requested.
+This was not the case here. It is true that the data subject as the owner of the building in question can examine its condition by himself anytime. However, this was irrelevant. The summaries of the photos and descriptions in the expert report constitute an independent processing of data. The data subject would not have access to this concrete information without the expert opinion.
+==== No Conflicting Copyright of the Expert ====
+The court then ruled that the expert's copyright did not preclude the right of access under [[Article 15 GDPR|Article 15(4) GDPR]].
+According to this provision, the receipt of a copy must not adversely affect the rights and freedoms of others. For further clarification, the court refers to Recital 63(5) of the GDPR. According to this, intellectual property rights may not be adversely affected by rights of access. However, Recital 63(6) of the GDPR requires a comprehensive balancing with the fundamental rights and freedoms of third parties. The rights and freedoms of other persons must not lead to the data subject being denied information.
+In the opinion of the court, copyrights were not opposed in the present case for two reasons:
+Firstly, the court already doubts whether an expert opinion is worthy of copyright protection at all. § 2 of the German Copyright Act (UrhG), which is relevant in this respect, protects scientific linguistic works only to a limited extent, namely in the form of formulations that are an expression of an individual (linguistic) creation as opposed to technical language.
+Secondly, the court states that even if copyright protection is assumed, there is no copyright conflicting.
+On the one hand, the plaintiff, who has the burden of proof, did not prove in the specific case that a right of use or utilization had been agreed between the expert and the plaintiff.
+On the other hand, there were no statutory provisions of the UrhG (§ 15(2)(2), § 19a UrhG; § 15(1)(2), § 17 UrhG) that prevented the provision of the work. The court subsequently examined these in more detail, which, however, will not be examined in more detail here due to the lack of relevance to data protection. In particular, the court stated that the expert opinion cannot fulfil the purpose of preserving evidence if it is not disclosed equally between the parties directly affected (plaintiff and data subject). The expert opinion is intended to establish the condition of the building and any existing damage prior to the commencement of the plaintiff's construction work by an independent third party, so that uniform and undisputed connecting facts can be used as a basis between the parties involved in subsequent legal disputes. The expert opinion therefore also served the interests of the data subjects, which is why they could also base their right to information on the principle of "equality of arms".
-== Comment ==
+==== No Abuse of Rights Under [[Article 12 GDPR|Article 12(5) GDPR]] ====
-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.
+Ultimately, the court examines whether the right to information is abusive in accordance with [[Article 12 GDPR|Article 12(5) GDPR]] and denies this.
-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.
+In principle, the right to information serves to control the lawfulness of the processing of personal data. However, the pursuit of a secondary purpose does not yet meet the objection of abuse of rights. Rather, the motives for a request for information do not have to be disclosed at all, so that it cannot be relevant for the weighing. Accordingly, the court refers to the prevailing German case law, according to which it is irrelevant if the data subject indicates that they are requesting the data in order to prepare a legal dispute or to improve their position in such a dispute.
+== Comment ==
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