AG Hamburg-Bergedorf - 410d C 197/20

AG Hamburg-Bergedorf - 410d C 197/20
Court:	AG Hamburg-Bergedorf (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 6(1) GDPR Article 82(1) GDPR Article 83(2) GDPR Article 2(a) Directive 2006/114 § 253 BGB § 823(1) BGB § 1004(1)(2) BGB
Decided:	07.12.2020
Published:
Parties:
National Case Number/Name:	410d C 197/20
European Case Law Identifier:
Appeal from:
Appeal to:	Unknown
Original Language(s):	German
Original Source:	Landesrecht-Hamburg (in German)
Initial Contributor:	gauravpathak

The Labour Court of Hamburg-Bergedorf held that a website offering legal services violated Article 6(1) GDPR by contacting a lawyer through email for advertising purposes without their express consent.

English Summary

Facts

The data subject is a lawyer and the controller is a website named Beratungsflat. The lawyer received an email from Beratungsflat and the email said that Beratungsflat offered legal advice by lawyers by telephone via its website, www.beratungsflat.de. The email also stated that Beratungsflat cooperated with lawyers, and they were remunerated by it for this telephonic advice. At the end of the e-mail, Beratungsflat asked whether the lawyer would be interested in offering legal advice by telephone via Beratungsflat's website and invited them to contact Beratungsflat if they were interested.

Beratungsflat had obtained the email address of the lawyer from the contact page of their law-firm's website. The contact page of the law firm's website also contained a marked notice that the processing or use of data for purposes of advertising or market or opinion research by any means of communication is objected to and that no advertising mailings or calls are desired. In normal text, the law firm's website further stated that the use of contact data published in the imprint or comparable information, including e-mail addresses, by third parties for the purpose of sending information not expressly requested is not permitted, and legal action is reserved.

On the day the email in question was received, the lawyer sent a cease and desist notice to Beratungsflat and claimed damages of €500. Subsequently, Beratungsflat refused to issue the cease-and-desist declaration and to make the payment.

Accordingly, the lawyer approached the Local Court Hamburg-Bergedorf seeking a direction prohibiting Beratungsflat from contacting and/or having contact made with them by email for advertising purposes without their express consent, on pain of an orderly fine of up to €250,000 for each case of culpable infringement, or alternatively up to six months' imprisonment, with the orderly imprisonment to be carried out for the Beratungsflat on the Beratungsflat's managing directors. The lawyer also sought an order directing Beratungsflat to pay them reasonable non-material damages, as decided by the Court, but which shall be no less than €500 including with interest.

Before the Court, Beratungsflat claimed that the email sent by it was not advertising, but an everyday request for legal advice. Furthermore, the lawyer had consented to being contacted by publishing the email address on the law firm's website, especially since the request for legal advice was part of the lawyer's usual activity. Beratungsflat submitted that the sending of the email did not constitute a violation of the GDPR and there was there was no material damage caused to the lawyer due to a single e-mail.

Holding

The Local Court Hamburg-Bergedorf held that sending e-mails with advertising content even just once to a lawyer who had to read their e-mail carefully for professional reasons constituted an interference with the established and exercised business. The email sent by Beratungsflat therefore constituted advertising as it was a statement made in the course of a trade, business, craft or profession with the aim of promoting the sale of goods or the provision of services. Beratungsflat's email was not seeking any legal advice but was an offer to the lawyer to join Beratungsflat's platform.

The lawyer at no point consented to the email being sent. There was no prior contact between the lawyer and Beratungsflat and there was no express consent. Moreover, Beratungsflat could not even assume consent, even as the email address was publicly available, because the lawyer explicitly objected to being contacted by advertising email.

The sending of the email despite the lawyer's express objection to advertising violated Article 6(1) GDPR. However, this violation alone was not sufficient to justify a claim for damages. Pursuant to Article 82(1) GDPR, a claim for damages only exists if material or non-material damage has been caused by the infringement, which should be as per examples listed in Recital 75 GDPR.

The lawyer claimed to have suffered non-material damage due to the fact that they were harassed by the one-time unlawful use of their data. A concrete impairment that went beyond the perceived harassment itself, i.e. the sending of the e-mail, was not to be seen in this. Thus, there was no significant damage to the lawyer beyond the infringement.

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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.

Court: AG Hamburg-Bergedorf
Date of decision: 07.12.2020
Legal force: yes
Reference: 410d C 197/20
Document type: Judgment
Source:
Standards: Art 6 para 1 S 1 TEU 2016/679, Art 82 para 1 S 1 TEU 2016/679, Art 83 para.
2 TEU 2016/679, § 253 BGB, § 823 para 1 BGB ... more

Tenor
1. the defendant is ordered, upon avoidance of a fine of up to €250,000.00 for each case of culpable infringement of this order, or alternatively
imprisonment for a term of up to 6 months, whereby the imprisonment for the defendant is to be enforced on the managing directors of the defendant, to cease and desist from
contact the plaintiff by email for advertising purposes without the express consent of the plaintiff.
the express consent of the plaintiff.
The remainder of the action is dismissed.
(2) The plaintiff shall bear 2/3 and the defendant 1/3 of the costs of the legal dispute.
3) The judgement is provisionally suspended for the plaintiff against security in the amount of € 500.00, for the defendant without security.
defendant without the provision of security. The plaintiff may avert enforcement by providing security in the amount of 110% of the amount enforceable
amount enforceable against the defendant, unless the defendant provides security in the amount to be enforced.
the amount to be enforced in each case.
Order
The amount in dispute is set at €750.00.
Facts
1 The plaintiff, a lawyer, demands that the defendant cease and desist from unsolicited contacting by email for advertising purposes as well as payment of damages
for sending an unsolicited e-mail advertisement.
2 On 18.05.2020 at 11:26 a.m., the plaintiff received, at the email address of his law firm,
[...], from the defendant. In it, the defendant stated that it offered legal advice by lawyers by telephone via its website www.beratungsflat.de and that it cooperated with lawyers for this purpose who were remunerated by the defendant for this telephone advice.
paid by the defendant for this telephone advice. At the end of the email, the defendant asked whether the plaintiff was
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would be interested in offering legal advice by telephone via the defendant's website and invites him to contact her in this case.
3 The defendant took the address for sending the email from the contact page of the plaintiff's website at [...]. In addition to the contact details, including the plaintiff's e-mail address, this page contains the note that the plaintiff can usually be reached on weekdays between 12:00 and 19:00, but in any case via fax or e-mail. Further down on the contact page, separated from the rest of the text by two solid lines
and in bold type, that the processing or use of data for the purpose of advertising or market or opinion research by any means of communication is prohibited and that no advertising mailings or advertising calls may be made.
advertising mailings or advertising calls are desired. In normal writing, it is further stated that the use of contact data published in the imprint or comparable information, including e-mail addresses by third parties for the purpose of
of information not expressly requested is not permitted and legal steps are reserved.
the right to take legal action is reserved.
4 By email dated 18 May 2020 at 11:47 a.m., the plaintiff demanded that the defendant submit a
declaration to cease and desist and to pay compensation for pain and suffering in the amount of
of € 500 by 18.06.2020. In a letter dated 16 June 2020, the defendant refused to issue the cease-and-desist declaration and to make the payment.
5 The plaintiff claims that he has to spend working hours to weed out unwanted e-mails and that he is a lawyer.
5 The plaintiff claims that he has to spend working hours to weed out unwanted e-mails and that, as a lawyer, he cannot use spam filters without further ado for liability reasons. He is of the opinion that the unlawful use of his data has
his general right of personality by the unlawful use of his data. He was harassed by the email, which constituted damage.
6 The plaintiff requests,
7 1. to prohibit the defendant, upon avoidance of a fine of up to € 250,000.00 for each case of culpable infringement, or alternatively up to six months' imprisonment, with the imprisonment of the defendant to be enforced on the defendant's managing directors, to
contact the plaintiff by email for advertising purposes without his express consent.
without his express consent,
8 2. order the defendant to pay the applicant appropriate non-material damages, the amount of which is at the
damages, the amount of which is left to the discretion of the court, but which should not be less than €500, together with interest at a rate of 9 percentage points above the respective base rate from 18 May 2020.
9 The defendant applies for
10 dismiss the action.
11 The defendant is of the opinion that the email it sent on 18 May 2020 is not advertising.
18.05.2020 was not advertising, but an everyday request for legal advice. Furthermore, the plaintiff had consented to being contacted by publishing the email address on its website, especially since the request for legal advice was part of the plaintiff's usual activities.
legal advice was part of the plaintiff's usual activities. The sending of the e-mail
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did not constitute a violation of the General Data Protection Regulation. Moreover, there was no concrete impairment of the plaintiff by the sending of a single e-mail.
12 In order to supplement the facts of the case, reference is made to the pleadings submitted together with the annexes.
are referred to.
Reasons for the decision
13 The action is admissible, but only well-founded with regard to the claim for injunctive relief.
1.
14 The plaintiff has a claim under §§ 823, para. 1, 1004, para. 1, sentence 2 of the German Civil Code (BGB) for injunctive relief against
the sending of unauthorised advertising messages to his email address by the defendant.
15 Even the sending of e-mails with advertising content only once to a lawyer who has to read his e-mail carefully for professional reasons constitutes an interference with the established and practised business.
16 Contrary to the defendant's view, the email of 18.05.2020 qualifies as advertising. Advertising is any statement made in the exercise of a trade, business, craft or profession with the aim of promoting the sale of goods or the provision of services (cf.
(cf. Art. 2 lit.a of Directive 2006/114/EC concerning misleading and comparative advertising) (BGH, judgement of 20 May 2009 - I ZR 218/07). In the email of 18 May 2020, the defendant draws attention to its business activity, namely the mediation of legal advice by telephone via a website, which is already to be regarded as advertising in the aforementioned sense (BGH, loc. cit., para. 13). It is
not a request for legal advice from the plaintiff. This is because the email in dispute does not refer to a specific mandate to be taken on by the plaintiff, but contains a general enquiry as to whether the plaintiff would like to make use of the defendant's services, namely the referral of clients via the defendant's website. In this respect, it is irrelevant that the plaintiff
would not have had to pay for the defendant's referral services. For the defendant
the plaintiff to offer his advice via its website, in order to thereby
its website in order to at least indirectly promote the sale of its own services (BGH).
of its own service (BGH, judgment 12.09.2013 - I ZR 208/12, para. 17f.).
17 The plaintiff did not give his consent. There was neither prior contact between the
contact or any other express consent between the parties. The defendant
took the email address from the plaintiff's website, even though the plaintiff had explicitly
explicitly objected to being contacted by advertising e-mail. The objection is
clearly distinguished from the rest of the text. Therefore, due to the fact that the plaintiff offered to be contacted by e-mail on the website, the defendant was entitled to take the plaintiff's consent,
the plaintiff's consent could not be assumed.
18 The concrete danger of repetition required for a claim for injunctive relief under § 1004 para. 1 sentence 2 BGB exists. An infringing act is already sufficient for this, as it gives rise to the factual presumption of further infringing acts in the future. The danger of repetition is only created by the issuance of an injunction.
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cease-and-desist declaration. Despite the plaintiff's request, the defendant did not issue a cease-and-desist declaration.
2.
19 The plaintiff is not entitled to a claim for damages under Article 82(1) of the GDPR or any other legal ground.
20 The sending of the disputed email despite the plaintiff's express objection to advertising violates Article 6(1) sentence 1 of the GDPR. However, this infringement alone
is not sufficient to justify a claim for damages.
21 Pursuant to Article 82(1) of the GDPR, a claim for damages only exists if, because of the
material or immaterial damage has been caused by the infringement. For the
The principles developed in the context of § 253 of the German Civil Code (BGB) apply to non-material damage.
In particular, the plaintiff has the burden of proof and presentation in this respect.
22 Even if, according to the wording of Art. 82 GDPR, there does not have to be a serious violation of the right of personality, the violation of the GDPR itself is not sufficient to justify a claim for damages for pain and suffering (LG Hamburg, judgment of
04.09.2020 - 324 S 9/19). Rather, according to the wording of Art. 82 GDPR, the infringement must result in a legal violation that can be qualified as immaterial damage according to the examples listed in Recital 75 of the GDPR.
23 Compensation for pain and suffering is intended to provide compensation for pain and suffering suffered (Palandt/Grünberg, 79th edition, § 253, marginal no. 4). In this context, the criteria of Art. 83 (2) GDPR are to be applied when assessing the damages, i.e. in particular the type, severity and duration of the infringement,
seriousness and duration of the infringement (BeckOK DatenschutzR/Quaas, 34th ed. 1.11.2020, DSGVO Art. 82 marginal no. 31). Thus, there must be an objectively identifiable impairment of the injured party that goes beyond the mere annoyance or the individually perceived inconvenience of the infringement, which must then be compensated by the payment of damages for pain and suffering (AG Frankfurt a. M. Urt. v. 10.7.2020 - 385 C
155/19 (70); LG Hamburg, judgment of 04.09.2020 - 324 S 9/19; AG Hannover, judgment of
09.03.2020 - 531 C 10952/19; LG Frankfurt/M., judgment of 18.09.2020 - 2-27 O 100/20;
LG Cologne, judgment of 07.10.2020 - 28 O 71/20).
24 In the present case, the plaintiff claims to have suffered non-material damage as a result of the
damage by the fact that he was harassed by the one-time unlawful use of his data.
of his data. A specific impairment that goes beyond the perceived harassment itself, i.e. the
The claim did not constitute a concrete impairment that went beyond the perceived harassment itself, i.e. the sending of the e-mail. There
There is therefore no concrete damage to the plaintiff beyond the infringement of rights.
plaintiff.
25 The court sees no need for a preliminary ruling pursuant to Art. 267 TFEU, the initiation of which is at the discretion of the court.
26 The GDPR has a blocking effect for other tort claims (Sydow, loc. cit,
2nd ed., Art. 82 marginal no. 27).
27 The decision on costs is based on § 92 (1) ZPO.
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28 The decision on provisional enforceability is based for the plaintiff on § 709 ZPO
and for the defendant on §§ 708 no. 11, 711 ZPO.
29 The total amount in dispute is set at €750, €250 for the claim for injunctive relief and €500 for the claim for damages.
€ for the claim for damages. There is no standard amount in dispute for proceedings to prohibit unsolicited e-mails. The assessment of the amount in dispute is not
economic total damage, but on the disadvantages that could arise for the plaintiff if the defendant were to continue the objectionable conduct in the future (OLG).
conduct in the future (OLG Hamm, judgment of 17.10.2013 - 6 U 95/13). These disadvantages are to be measured against the plaintiff's effort to receive and have to delete further emails from the defendant. Despite the special professional duties of care of a lawyer, the time required for this is to be classified as insignificant in the present case. The time between the receipt of the defendant's email and the plaintiff's sending of the
warning by the plaintiff was only 21 minutes. The amount in dispute does not have a special or general preventive function (cf. BGH decision of 30.11.2014
for reference: VI ZR 65/04).