OLG Celle - 13 U 84/19

OLG Celle - 13 U 84/19
Court:	OLG Celle (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 16 GDPR Article 82(2) GDPR
Decided:	20.01.2022
Published:
Parties:
National Case Number/Name:	13 U 84/19
European Case Law Identifier:	ECLI:DE:OLGCE:2022:0120.13U84.19.00
Appeal from:	LG Hannover 8 O 49/19
Appeal to:	Unknown
Original Language(s):	German
Original Source:	Niedersächsiches Landesjustizportal (in German)
Initial Contributor:	Sara Horvat

The Higher Regional Court Celle held that a social media platform provider is not obligated under Article 16 GDPR to update a user's record of violations of the terms and conditions even if a court later determines that there were no such violations.

English Summary

Facts

The data subject is a user of the social media platform F (controller).

The controller was of the opinion that two comments posted by the data subject violated the terms and conditions ("F's Community Standards"). As a consequence, the controller deleted the two comments and restricted the abilities of the data subject's profile temporarily. It also made a note of haven taken these measures against the data subject in case of future violations.

The data subject filed a law suit against the controller. In this law suit the data subject requested, among others:

1. that the controller will be ordered to restore the two comments,

2. that the measures of the controller will be declared illegal,

3. that injunctive relief will be granted,

4. that the controller will be ordered to rectify the data so that the existence of a breach of the terms is deleted from the record and the counter recording the number of breaches is reset and

5. that damages will be awarded.

The Regional Court Hannover dismissed the claim of the data subject entirely.

The data subject appealed this decision.

Holding

The appellate court - the Higher Regional Court Celle (Oberlandesgericht Celle - OLG Celle) - amended the judgement and granted the requests 1-3, but still denied the requests for rectification (4) and damages (5).

After establishing that the data subject did not violate the terms and conditions, the court focused primarily on the application for rectification. The court concluded that the note of the controller about the deletion of the comments and the restriction of the account is not "inaccurate" data according to Article 16 GDPR, because the deletion and restriction of the account have indeed taken place. Furthermore, the court found that there is no indication that the controller actually stores a note in which it deems its measures to "have been proven lawful"[explicitly phrased this way by the court - see Comments on this]. The court further reasoned that even if the controller would have stored such a note, the data subject would still have no right to rectification under Article 16 GDPR, because the content would be a legal assessment and not a fact. The court concluded that legal assessments are opinions and opinions of private persons are, as far as they do not contain any factual elements, excluded from the scope of Article 16 GDPR because of the freedom of speech. The court then clarified that the controller's opinion would obviously have no legal effect. Only the court's ruling in the context of the application for a declaration (application 2 of the claim) has a binding legal effect on the question of the (un)lawfulness of the controller's measures.

Regarding the application for damages, the court determined that the data subject is not entitled to damages under sentence 1 of Article 82(2) GDPR because the controller's measures - regardless of their contractual permissibility - did not constitute a violation of the GDPR. The court found that the data subject consented to the processing of the data. It, eventually, reasoned that the controller's breach of contract itself (the unlawful deletion of the comments) does not make the processing of the data unlawful.

Comment

That opinions are excluded from the scope of Article 16 GDPR, in my opinion, already follows from the word "inaccurate" in the first sentence of Article 16 GDPR and does not need to be derived from the freedom of expression. Only facts can be either accurate or inaccurate, not opinions. A fact is of objective nature, something that can be proven true. An opinion is of subjective nature, something that expresses the attitude of a person towards something. The distinction between the two depends on how a third party would have understood the statement, whether they would haven take it as a statement of fact or as an expression of attitude.

The decision raises some questions. If the controller would have actually noted down that its measures "have been proven lawful" - as phrased by the court - would that not be a factual statement? The measures of the controller were indeed proven unlawful by the court. Where is the line between legal evaluation and factual statement? Can a binding court decision turn a legal evaluation into a fact for the parties involved? May the outcome of a request under Article 16 GDPR depend on the phrasing of the data? What about the right to be forgotten under Article 17 GDPR?

In my opinion, it is reasonable to assume that internal notes by the controller such as "user X violated provision Y" or "measures A, B and C are lawful because of a violation of D" are legal evaluations, and they keep this character even after a court issued a binding decision that the user did not violate the terms and conditions. The controller is free to have another opinion than the court. However, if the controller would somehow express this view in a way that gives a factual meaning to it, e.g. making a public statement that "user X violated provision Y" - without any hint to being an opinion, the user would have a right to rectification under Article 16 GDPR. I think the phrase "have been proven lawful" is a statement of fact and, therefore, must be rectified under Article 16 GDPR to "have not been proven lawful".

An interesting question, which was not raised, would have been whether the requirements of Article 17 GDPR were met in this case. The data subject primarily wanted his violations to be deleted. There could be an argument that Article 17(1)(a) GDPR is fulfilled after the court determined that the measures of the controller were unlawful. The "past violations" could not legally justify stricter measures against the data subject in case of future violations. Therefore, the storing of the past violations could no longer be necessary.

This however would then raise the question whether legal evaluations are personal data or not. The Tax Court of München recently held that legal evaluations do not constitute personal data according to Article 4(1) GDPR, only the (personal) facts underlying the evaluations do, see https://gdprhub.eu/index.php?title=FG_M%C3%BCnchen_-_15_K_118/20.

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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.

Claims by the user of a social network in the event of the deletion of a user contribution and the temporary blocking of the user account

1. Regarding the claims of the user of a social network if its provider - on the basis of invalid clauses in its general terms and conditions - has deleted a user contribution and temporarily blocked his user account (following the decisions of the Federal Court of Justice of July 29, 2021 - III ZR 179/20 and III ZR 192/20).
2. If the clause in the general terms and conditions of a provider of a social network, which entitles him to delete user contributions, is ineffective, a right to delete non-illegal contributions also does not arise by way of supplementary contract interpretation.
3. The provider cannot successfully counter the user's claim for the activation of a contribution that was deleted in violation of the contract that the assertion of the claim is unfair because the contribution violates the community standards of the social network and the user is therefore obliged to delete the contribution that has been activated again would be (return objection from § 242 BGB - "Dolo-agit objection").

OLG Celle 13th civil senate, judgment of January 20th, 2022, 13 U 84/19, ECLI:DE:OLGCE:2022:0120.13U84.19.00

§ 242 BGB, § 249 Abs 1 BGB, § 280 Abs 1 S 1 BGB, Art 16 EUV 2016/679, Art 82 Abs 2 S 1 EUV 2016/679, § 256 ZPO

PROCEDURE
Proceeding LG Hanover, Az: 8 O 49/19


TENOR
Upon the plaintiff's appeal, the judgment of the 8th civil chamber of the Hanover Regional Court of November 7, 2019 - with the rest of his appeal being rejected - is partially amended and reworded as follows:

I

The defendant is sentenced to re-enable the plaintiff's following contributions on f....com:

1. the post deleted on January 25, 2019

"the Americans are just perverted and have a lot of fun killing"

2. Post deleted May 8, 2019

"go around"

II.

The defendant is ordered to refrain from

the plaintiff for the hiring of the above item I.1. to re-block or delete the above text on www.f...com if it refers to an article about abortion in N.Y. (USA) entitled “N. Y. legalizes abortions up to childbirth – Church threatens excommunication”, the plaintiff refers to the cessation of the clause I.2. to block the said text on www.f...com again or to delete the post if it refers to an article with the title "Attenkirchen: Naked Africans devastate accommodation, build barricades with furniture and block road".

In the event of an infringement of the above prohibitions, the defendant is threatened with a fine of up to €250,000, alternatively imprisonment, or imprisonment for up to six months; To be duly carried out on the board of the defendant.

III.

It is established that the defendant had no right to remove the plaintiff's posts on the platform www.f...com mentioned under Item I and to impose blocks on the plaintiff because of these posts in the form of a restriction of the possibilities of use of the platform.

IV

Moreover, the application is dismissed.

The plaintiff bears 44% and the defendant 56% of the first-instance costs of the legal dispute. The plaintiff bears 60% of the costs of the court of appeal and the defendant bears 40%.

The judgment is provisionally enforceable.

The amount in dispute for the appeal proceedings is set at €20,250.

REASONS
A

1
As a user of the social network F... operated by the defendant, the plaintiff asserts various claims because the defendant deleted two comments he had written and posted there and temporarily restricted his rights of use.

2
In January 2019, the plaintiff commented on F... an article about a new law in the US state of N. Y. on abortion (page 9 f. d.A.) with the words:

3
"the Americans are just perverted and have a lot of fun killing"

4
In May 2019, the plaintiff commented on an article shared by a third-party user from the Russian website "a....ru". The article reported under the headline “Attenkirchen: Naked African man devastates accommodation, builds barricade with furniture and blocks road” about an asylum seeker who was taken to a hospital after the incident described because he was a danger to others. The plaintiff commented on the article with the word "go around".

5
The plaintiff claimed that his posts were unjustly deleted and his account blocked. His contributions did not violate the defendants' community standards. In any case, mere violations of the community standards do not entitle the defendant to delete contributions or to block the user.

6
The plaintiff last requested in the first instance (page 2 ff., 232 ff., 277 of the case file),

7
1. Order the defendant to correct the plaintiff's data so that the existence of a violation of the terms of use by the post deleted on 01/25/2019 is deleted from the data set and the counter that records the number of violations by a violation is reset;

8th
2. Determining that the defendant had no right to remove the plaintiff's contribution mentioned under point 3, which was deleted on January 25th, 2019, on the platform www.f...com, and against the plaintiff because of this contribution in the form of a to impose restrictions on the use of the platform, made on January 25, 2019;

9
3. the defendant to give up re-enabling the plaintiff's post, which was deleted on January 25, 2019

10
"the Americans are just perverse and enjoy killing, really terrible"

11
4. Determining that the defendant had no right to remove the plaintiff's contribution mentioned under item 5, which was deleted on May 8th, 2019, on the platform www.f...com and against the plaintiff because of this contribution in the form of a restriction to impose the possibilities of using the platform, made on May 8th, 2019;

12
alternatively in the event that the court should affirm the claim to 4).

13
order the defendant to correct the plaintiff's data so that the existence of a violation of the terms of use is deleted from the data set by the post deleted on May 8th, 2019 and the counter that records the number of violations is reset by one violation ;

14
5. order the defendant to reactivate the plaintiff's post, which was deleted on May 8th, 2019

15
"go around"

16
6. Order the defendant to refrain from re-blocking or deleting the plaintiff for posting the text referred to in paragraph 3 on www.f...com if it refers to an article about abortion in NY (USA) entitled “N. Y. legalizes abortions until childbirth – Church threatens excommunication”,

17
in the event of an infringement, to impose a fine of up to €250,000, alternatively imprisonment, or threaten imprisonment to impose imprisonment on the board of directors;

18
7. Order the defendant to refrain from blocking the plaintiff again for posting the text mentioned in paragraph 5 on www.f...com or deleting the post if it refers to an article with the title " Attenkirchen: Naked Africans devastated accommodation, built barricades with furniture and blocked the road".

19
in the event of an infringement, to impose a fine of up to €250,000, alternatively imprisonment, or threaten imprisonment to impose imprisonment on the board of directors;

20
8. to order the defendant to provide the plaintiff with information as to whether the blocking pursuant to paragraphs 2 and 4 was carried out by a commissioned company and, in the latter case, by which company;

21
9. to order the defendant to provide the plaintiff with information as to whether they have received specific or abstract instructions, notices, advice or any other suggestions from the Federal Government or subordinate agencies with regard to the deletion of contributions and/or the blocking of users, and if necessary . Which;

22
10. order the defendant to pay the plaintiff damages in the amount of €3,000 plus interest of five percentage points above the base interest rate from €1,500 since January 25, 2019 and from €1,500 since May 8, 2019;

23
11. Order the defendant to pay the plaintiff attorney's fees

24
a) for the extrajudicial activity in case 1 in the amount of €597.74 and

25
b) for obtaining a cover letter for the out-of-court activity in Case 1 in the amount of €201.71 and

26
c) for obtaining a cover note for the claim in case 1 in the amount of €729.23

27
d) for the extrajudicial activity in case 2 in the amount of €597.74 and

28
e) for obtaining a cover note for the out-of-court activity in case 2 in the amount of €201.71 and

29
f) for obtaining a cover letter for the claim in Case 2 in the amount of €729.23

30
by payment to the law firm R....

31
The defendant has requested (page 277 of the case file)

32
reject the complaint.

33
The defendant has argued that the plaintiff's disputed contributions violated their effectively agreed community standards. She was therefore entitled to delete the posts and temporarily block the plaintiff.

34
Due to the further facts, reference is made to the facts of the contested judgment and the content of the pleadings exchanged by the parties.

35
With a judgment of November 7, 2019 (page 288 ff. of the case file), the Hanover Regional Court dismissed the action. The declaratory motions for 2 and 4 are inadmissible. Only the existence or non-existence of a legal relationship can be determined, not an individual element of a legal relationship. The remaining claims - to 1, 3 and 5 to 11 - are unfounded. According to Art. 1, 3 Para. 1, Art. 6 Para. The terms of use changed in April 2018, including the referenced community standards, have become part of the contract. After the changed terms of use were announced to the plaintiff on April 19, 2018, he gave his approval on May 9, 2018 (Annex B 19). The change had become effective against the plaintiff. The plaintiff was informed at the beginning of the contractual relationship that the use of the defendant's services depended on the acceptance of the applicable contractual conditions (Art. 13 of the terms of use of February 2, 2016). This regulation does not disadvantage the user unreasonably. The user is free either to refrain from using the defendant's services and to disseminate his opinions on other communication channels or to use a civilized choice of words. The plaintiff could not demand the release of the deleted posts. The defendant had the authority to delete the plaintiff's statements and temporarily place his account in a "read-only" mode because the statements violated their current community standards. The plaintiff's comment on the abortion law of the state of NY with the words: "the Americans are just perverts and really enjoy murdering" violates the terms of use in connection with part III number 12 of the referenced community standards in the version from 2018. It is a direct attack on a group of people because of their national origin, expressed in words of disgust. All Americans are generally accused of being perverted and enjoying murder. The commentary on the article "Attenkirchen: Naked Africans devastated accommodation, built barricades with furniture and blocked road" with the word "detour" violated the community standards of the defendants (Part I and Part II, paragraph 9, calls for violence). What is decisive is the objective meaning of the statement, which is to be assessed from the point of view of an unbiased average reader according to general usage in the overall context. Accordingly, the plaintiff's statement should not be understood to mean that motorists should drive around the person at the roadblock. Rather, from the point of view of an average reader, the plaintiff was upset about the situation described in the article and would eliminate it through the use of force. The plaintiff could not successfully claim that it was an ambiguous statement and should therefore be interpreted in his favor according to the case law of the Federal Constitutional Court. The case law applies to the examination of criminal offenses, not to the violation of the terms of use at issue here. Even assuming an ambiguity, the defendant is entitled to delete the contribution with reference to its terms of use because the plaintiff did not clearly express himself in a non-violent manner. The relevant regulations of the community standards are not ineffective according to § 307 paragraph 1 sentence 1 BGB. It is true that these are general terms and conditions. It does not represent an inadmissible restriction of the essential rights of the user that the communication platform provided is regulated by prohibitions on attacks on people through calls for violence and hate speech. The user can express criticism without calling for violence against people or defaming certain groups of people simply because of their origin. According to the case law of the Federal Constitutional Court, fundamental rights have an indirect effect on third parties, including in private law. The plaintiff's freedom of expression was not unreasonably restricted in view of the fact that the blocking was only temporary and despite the dominant position of the respondent. The fundamental right to freedom of opinion does not apply without restrictions, but is limited by the right to personal honor and the protection of personality in accordance with Articles 1 and 2 of the Basic Law. From the point of view of a “virtual domiciliary right”, the defendant has the property protected under Art. 14 (1) GG or the possession of the hardware or software used for their offer, the right to entrepreneurial freedom under Art. 12 (1) GG and the general entrepreneurial freedom of action according to Art. 2 Para. 1 GG. She is also entitled to establish regulations for the use of her platform because, as an indirect disruptor, she is liable for contributions by others and can be held liable for injunctive relief. The civil law statutes specifying the fundamental rights include in particular the contractual obligation - which also applies to the users of the platform - to be considerate in accordance with Section 241 (2) of the German Civil Code. The provisions on the ban on incitement to violence or hate speech are also not unclear or incomprehensible within the meaning of Section 307 (1) sentence 2 BGB. For an average user, it is clearly recognizable that the defendant does not want to make its platform available for the distribution of content that generally degrades people of the same nationality or in which violence is called for. In addition, the objected regulations essentially prohibit statements that are punishable under Section 130 StGB and thus constitute illegal content within the meaning of Section 1 (3) NetzDG. It is therefore doubtful whether they are subject to the content control according to Section 307 Paragraphs 1 and 2 of the German Civil Code. Because the defendant was authorized to delete the comments and temporarily restrict the plaintiff's rights of use, the plaintiff could not demand that they refrain from deleting or blocking the comments if they were posted again. The plaintiff is also not entitled to have his data corrected in accordance with Art. 16 GDPR because he has agreed in advance to the collection and processing of his data (Art. 6 Para. 1 lit a GDPR) and the data is not incorrect. The plaintiff could also not request any information as to whether the ban imposed on him was carried out by a "commissioned company". It is not apparent what the plaintiff could claim against a third party to be named by the defendant. Claims against a third party are out of the question because the plaintiff does not have a special relationship under the law of obligations and claims for damages under Section 826 of the German Civil Code are not apparent. The defendant is also not obliged to provide the requested information in relation to the Federal Government because it made the decision itself and was allowed to make it and the information was also aimed at an inadmissible investigation. Also damages according to § 823 Abs. 1 BGB i. In conjunction with Article 2(1) and Article 1(1) of the Basic Law, the plaintiff could not demand this because the necessary violation of personal rights did not exist. There is also no entitlement to payment of a fictitious license fee because the plaintiff agreed to the use of his data by the defendant. There is also no claim under Article 82 of the General Data Protection Regulation (GDPR). The deletion of the posts and the temporary restriction of the plaintiff's account does not violate the mandatory requirements of the GDPR.

36
The plaintiff's appeal is directed against this, with which he is fully pursuing his first-instance claims. The regional court wrongly assumed that the defendant was authorized to regulate permissible expressions of opinion, that the defendant's terms of use/community standards had been effectively changed and that the new version was compatible with German law. The district court did not examine whether the defendant was entitled to block the plaintiff.

37
The plaintiff requests (p. 378 ff., 555 of the case file):

38
1. The judgment of the Hanover Regional Court of November 7th, 2019, delivered on November 12th, 2019, Az. 8 O 49/19, is amended.

39
2. The defendant is sentenced to correct the plaintiff's data so that the existence of a violation of the terms of use by the post deleted on 01/25/2019 is deleted from the data set and the counter that records the number of violations by a violation is reset.

40
3. It is determined that the defendant had no right to remove the plaintiff's contribution mentioned under Section 4, which was deleted on January 25th, 2019, on the platform www.f...com and to block the plaintiff because of this contribution in to impose a restriction on the use of the platform, made on January 25th, 2019.

41
4. The defendant is ordered to reactivate the plaintiff's contribution, which was deleted on January 25, 2019.

42
"the Americans are just perverted and have a lot of fun killing"

43
5. It is established that the defendant had no right to remove the plaintiff's contribution mentioned under Section 6, which was deleted on May 8th, 2019, on the platform www.f...com and to block the plaintiff because of this contribution in to impose a restriction on the possibilities of using the platform, made on May 8th, 2019.

44
Alternatively, it is requested - in the event that the court should affirm the claim in clause 4 - as follows:

45
The defendant is sentenced to correct the plaintiff's data in such a way that the existence of a violation of the terms of use is deleted from the data set by the post deleted on May 8th, 2019 and the counter that records the number of violations is reset by one violation .

46
6. The defendant is ordered to reactivate the plaintiff's contribution, which was deleted on May 8th, 2019.

47
"go around"

48
7. Defendant is ordered to refrain from re-banning or deleting Plaintiff from posting the text referred to in paragraph 4 on www.f...com if it refers to an article about abortion in NY (USA) entitled “N. Y. legalizes abortions until childbirth – Church threatens excommunication”.

49
In the event of an infringement, you will be fined up to €250,000, alternatively imprisoned, or imprisoned to be imprisoned by the board members.

50
8. The defendant is sentenced to refrain from blocking the plaintiff again for posting the text mentioned in paragraph 6 on www.f....com or deleting the contribution if it refers to an article with the title "Attenkirchen: Naked Africans devastated accommodation, built barricades with furniture and blocked the road".

51
In the event of an infringement, you will be fined up to €250,000, alternatively imprisoned, or imprisoned to be imprisoned by the board members.

52
9. The defendant is sentenced to provide the plaintiff with information as to whether the blocking pursuant to Sections 3 and 5 was carried out by a commissioned company and, in the latter case, by which company.

53
10. The defendant is sentenced to provide the plaintiff with information as to whether it has received concrete or abstract instructions, notices, advice or any other suggestions from the Federal Government or subordinate agencies with regard to the deletion of contributions and/or the blocking of users, and if necessary . Which.

54
11. The defendant is sentenced to pay the plaintiff damages in the amount of €3,000 plus interest of five percentage points above the base rate, €1,500 since January 25th, 2019 and €1,500 since May 8th. to be paid in 2019.

55
The plaintiff makes the above application as an alternative with the proviso that primarily the damage due to violation of the general right of personality is asserted, secondarily the damage due to contractual claims (fictitious license fee) and thirdly the damage due to a violation of the General Data Protection Regulation .

56
12. The defendant is ordered to pay the plaintiff attorney's fees

57
a. for the out-of-court activity in Case 1 (block from January 25, 2019) in the amount of €597.74 and

58
b. for obtaining a cover note for the out-of-court activity in case 1 (block from January 25, 2019) in the amount of €201.71 and

59
c. for obtaining a cover note for the lawsuit in case 1 (block from January 25, 2019) in the amount of €729.23

60
i.e. for the out-of-court activity in Case 2 (block from May 8, 2019) in the amount of €597.74 and

61
e. for obtaining a cover note for the out-of-court activity in case 2 (block from May 8, 2019) in the amount of €201.71 and

62
f. for obtaining a cover note for the lawsuit in case 2 (block from May 8, 2019) in the amount of €729.23

63
by payment to the law firm R....

64
The defendant requests (page 463 of the case file),

65
to dismiss the appeal.

66
She defends the contested judgment by repeating and deepening her first-instance submission.

67
The plaintiff sees himself confirmed by the decisions of the Federal Court of Justice of July 29, 2021 (III ZR 179/20 and III ZR 192/20) made after the end of the oral hearing.

68
The defendant is of the opinion that the lawsuit is unfounded overall, even taking into account these decisions of the Federal Court of Justice. Regardless of the effectiveness of the clause, a right to remove content that violated their community standards also stems directly from the user contract. A right of removal also arises on the basis of a supplementary interpretation of the contract. The lawsuit for the restoration of the contributions is also contrary to good faith, because the plaintiff would then be obliged to delete them again at the moment of the restoration of the non-contractual contributions. With regard to the reservation of blocking, the invalidity of the clause would also create an unreasonable contractual loophole, because the defendant would be forced to terminate the user contract without this option, which would obviously not be in the interests of the contracting parties. If the plaintiff reposts his contribution in the same context, a prior hearing may no longer be necessary. In any case, the view of the Federal Court of Justice that users should be heard before imposing a block is dubious, because the assessment must depend on the objective recipient horizon and therefore an intention of the user that is not externally apparent is irrelevant.

B.

69
The admissible appeal is partially well founded.

70
The defendant was not entitled to delete the plaintiff's contributions and to block them, so that the appeals for 4 and 6 (restoration of the contributions), for 7 and 8 (omission) and for 3 and 5 (determination) are justified (section II ).

71
Otherwise - with regard to the appeal applications for 2 (data correction) and 9 to 12 (information, damages, exemption) the appeal is unsuccessful; the action is unfounded in this respect, regardless of the admissibility of the defendant's measures (section III).

72
I. International Jurisdiction

73
According to Art. 17 Para. 1 Letter c), Para. 2 in conjunction with Art. 18 Para. 1 Var. 2 of Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of December 12, 2012 on jurisdiction and the recognition and enforcement of decisions in civil and commercial matters (Brussels Ia-VO) with international jurisdiction (Federal Court of Justice, judgment of July 29, 2021 - III ZR 179/20, para. 24).

II.

74
1. The plaintiff has a claim against the defendant pursuant to Section 280 (1) sentence 1 in conjunction with Section 249 (1) BGB to have the posts deleted by the defendant reactivated.

75
a) By deleting the posts, the defendant breached its contractual obligations under the contract of use. She was not authorized to delete the posts.

76
aa) The defendant has no right to delete the plaintiff's disputed contributions pursuant to No. 3.2 of the Terms of Use in conjunction with Part III No. 12 of the Community Standards. Because the reservation of removal specified there is ineffective according to § 307 Para. 1 Sentence 1 BGB (BGH, judgment of July 29, 2021 - III ZR 179/20, para. 30, 51 ff.). The Senate follows the assessment of the Federal Court of Justice in the aforementioned decision.

77
bb) The defendant was also not entitled to remove the plaintiff's contributions because they contained criminal content.

78
It is true that the defendant is obliged to take immediate action to remove or block criminal content in its social network as soon as it becomes aware of facts or circumstances from which the illegality of the contributions becomes obvious (BGH, loc. cit., para. 98 ).

79
However, the disputed contributions are not punishable and are not asserted by the defendant.

80
cc) A right to delete the contributions also does not result from the other contractual law. In particular, it is out of the question to substitute a fundamental rights-compliant cancellation right for the ineffective clause in the General Terms and Conditions by way of supplementary contract interpretation.

81
It can be left undecided whether a supplementary contract interpretation for consumer contracts - within the scope of the clause directive - may take place at all (contrary: BeckOK BGB/H. Schmidt, 59th ed. 01.08.2021, § 306 marginal number 10). In any case, in the case of ineffective general terms and conditions, a supplementary interpretation of the contract - in the absence of legal provisions that take the place of the ineffective clause (§ 306 Para. 2 BGB) - only comes into consideration in very exceptional cases, namely if the deletion of the clause without replacement leads to a result which no longer takes mutual interests into account in a reasonable manner, but would shift the contractual structure completely unilaterally in favor of the user's contractual partner, so that it would not be reasonable to expect him to adhere to the incomplete contract (Federal Court of Justice, judgment of February 15, 2019 - V ZR 77 /18, para. 18).

82
There can be no question of this in the case of a dispute. The defendant can continue to delete criminal user contributions (see above). In the case of contributions that only violate its community standards, it can request the user to delete them out of court and, if necessary, sue him for deletion in court. In the case of persistent, serious violations, she can also terminate the contract of use (§ 314, § 626 BGB).

83
Insofar as the defendant referred to a decision of the Federal Court of Justice in parallel proceedings on the supplementary interpretation of the contract in the event of an invalid interest rate change clause in a savings contract (Federal Court of Justice, judgment of October 06, 2021 - XI ZR 234/20), this does not lead to a different assessment. The gap that was created by the invalid interest rate clause - while the agreement on the variability of the interest rate was effective at the same time - had to be closed by a supplementary interpretation of the contract in order to implement the savings contract (loc. cit. para. 41). A comparable situation does not exist in the event of a dispute, because the contract of use can be carried out without further ado even without the ineffective provisions on deletion and blocking.

84
b) The claim for the restoration of the posts resulting from the deletion in violation of the contract cannot be countered by the fact that the plaintiff behaves in bad faith (§ 242 BGB) because he - due to a violation of the community standards of the defendant - is obliged to delete the posts for his part could.

85
The so-called return objection is derived from § 242 BGB. Anyone who demands something that he must return immediately is acting in bad faith (“Dolo agit, qui petit, quod statim redditurus est”) (BeckOGK/Kähler, August 1, 2021, BGB § 242 marginal no. 1358). However, this objection to return is not unlimited, as already follows from § 863 BGB. Thus, the objection to restitution cannot be a basis for circumventing the requirements for self-help under § 229 BGB and for encroaching on third-party rights on the grounds that the situation created in this way is correct (ibid., para. 1364). If someone deliberately disregards a foreign law in order to enforce a claim, their claim to loyalty is reduced. According to the legal concept of § 863 BGB, depending on the severity of the breach of fidelity, he is then to be denied the objection to return, even if he does not finally lose the right to return (ibid.).

86
In the case of a dispute, the clause in the defendant's terms of use, with which the defendant stipulated a right of deletion, is invalid because it does not grant the user any procedural rights in the course of the deletion of the contribution and the temporary blocking of his account, which - in the necessary consideration of the opposing Fundamental rights positions of the parties - take sufficient account of the freedom of expression of the users and the principle of equal treatment and lead to a balancing of the conflicting fundamental rights positions in a way that reflects the interests of the parties (Federal Court of Justice, judgment of July 29, 2021 - III ZR 179/20 -, para. 83 ff.). It would be incompatible with the necessary "protection of fundamental rights through procedural law" if the user's claim for the restoration of the contribution could be countered by the objection of return and the defendant could thus delete contributions in violation of the contract without sanctions. Rather, the legal concept of Section 863 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) must come into play accordingly, so that the defendant must be referred to first asserting any claims for deletion against its users out of court and then, if necessary, through legal action.

87
2. The plaintiff is also against the defendant according to § 280 paragraph 1 BGB

88
a right to refrain from blocking the account again and deleting the posts when they are posted again.

89
a) The defendant - as stated - violated its contractual obligations by removing the plaintiff's contributions. The same applies to the blocking of the plaintiff's user account. In this respect, too, the defendant was not entitled to the measure it had taken due to the ineffectiveness of the removal and blocking proviso in No. 3.2 of the Terms of Use (BGH, loc. cit., para. 101).

90
b) A contractual injunctive relief follows from § 280 Para. 1 BGB if the defendant has already violated its obligations from the - ongoing - contractual relationship and the breach of contract - in the form of the removal of the plaintiff's contribution - is still partially ongoing (BGH, loc.cit., para. 102).

91
c) For the existence of a risk of recurrence (cf. on the requirement:

92
BGH, loc. cit., para. 103) speaks of an actual presumption due to the breaches of duty already committed by the defendant. Indications for a rebuttal of the presumption are neither presented nor apparent.

93
3. The appeal motions for 3 and 5 (declaration) are admissible as interim declaratory motions pursuant to Section 256 (2) ZPO. The applications are aimed at establishing a legal relationship. Whether the defendant was not entitled to the deletions and blocks does not relate to mere elements or preliminary questions of a legal relationship, but to the non-existence of a legal relationship (cf. on the distinction BGH, judgment of June 17, 2016 - V ZR 272/15, para. 9 f .). According to Section 256 (2) ZPO, there is no need for a determination because these are preliminary questions that are relevant to the decision regarding the applications for injunctive relief.

94
For the above reasons, the applications for a declaratory judgment are also justified.

III.

95
Apart from that, the lawsuit - regardless of the admissibility of the deletion and blocking - is unfounded.

96
1. The appeal request for 2 (data correction) is unfounded.

97
There is no right to data correction - regardless of the admissibility of the measures.

98
According to Art. 16 DS-GVO, the person concerned can request the correction of incorrect personal data concerning him.

99
Insofar as the defendant has noted the deletion and blocking in its database, this is not incorrect data, because the deletion and blocking were undisputedly carried out. It has neither been shown nor is it otherwise apparent that the question of whether the deletion and blocking have proven to be lawful is the subject of another stored data set.

100
In any case, no correction can be demanded in this respect either, because it is not a question of a fact that can be proved, but of a legal assessment. Value judgments made by private individuals are generally excluded from the scope of the obligation to correct, if only because of the protection of freedom of expression, insofar as they do not contain factual elements (BeckOK DatenschutzR/Worms, 34th Ed. August 1st, 2020, DS-GVO Art. 16 para. 54).

101
The defendant cannot be prevented from noting their opinion that the deletion and blocking were lawful. However, such storage does not prejudice the question of legality. This question is already decided in a binding manner by the application for a declaratory judgment. The order to correct the data would not have any further-reaching binding effect on the defendant, for example if, when sanctioning further violations, the proportionality test was based on the number of violations committed previously. There is no legal basis for such a binding effect, which goes beyond the substantive legal force of the judgment. There is no regulation that the stored data is binding for the assessment of the legal situation.

102
2. The asserted claims for information (appeals to 9 and 10) also do not exist.

103
a) The obligation to provide information, based on the principle of good faith, represents an ancillary obligation and therefore generally requires a fundamentally established entitlement to performance (MüKoBGB/Krüger, 8th ed. 2019, BGB § 260 marginal number 15). The claim-substantiating features of the claim must therefore be given, only the content of the claim, which the information is required to determine, may be open. Of course, there must be a probability that something will remain to be demanded after the result of the information. If the entitlement to performance consists, for example, of a claim for damages under Section 823 (1) of the German Civil Code (Bürgerliches Gesetzbuch), all of the factual prerequisites for this entitlement, including fault, must be met; probability is sufficient only for the occurrence of damage. In general, only those who are already affected by the behavior of the person from whom they want information, or who are otherwise affected in their existing rights in such a way that there are fears that adverse consequences for them are to be feared if the information is not provided, can request information (ibid.).

104
b) In the event of a dispute - regardless of the admissibility of the deletion and blocking - there is no evidence of any liability on the part of any third party commissioned by the defendant. The usage relationship from which the - contractual - claims of the plaintiff arise exists only between the parties to the legal dispute. Service providers commissioned by the defendant are not involved in this. A tortious claim is also out of the question. The challenged measures do not constitute a violation of the plaintiff's general right of personality. The possibility of posting comments on F... is not a part of the general right of personality protected by tort law. Immoral damage within the meaning of § 826 BGB is not recognizable.

105
c) Nothing is evident for a claim against the Federal Republic of Germany either. The alleged influence of the federal government is pure conjecture on the part of the plaintiff without any factual basis. The regulation made as part of the Network Enforcement Act is irrelevant to the question of the extent to which the defendant deletes and blocks posts that do not constitute illegal content under Section 1 (3) NetzDG.

106
3. The appeal motion to 11 (payment) is unfounded.

107
a) The application for payment is now permissible after the plaintiff has submitted the application in the appeal hearing with the proviso that primarily the damage due to violation of general personality rights is asserted, alternatively, in the second place, the damage due to contractual claims (fictitious license fee) and further alternatively in the third line the damage due to a breach of the General Data Protection Regulation.

108
The original request for payment is inadmissible because it is an - inadmissible - alternative accumulation of lawsuits (cf. MüKoZPO/Becker-Eberhard, 6th edition 2020, § 260 para. 22). The plaintiff alternatively based his request for payment on various aspects (immaterial compensation for the violation of his personal rights through the account blocking, financial loss through the unauthorized use of his posted content and compensation for the unauthorized data processing). There are thus three different matters in dispute (procedural claims). A material and an immaterial claim for damages are always procedurally independent matters in dispute (Federal Court of Justice, judgment of May 27, 1993 - III ZR 59/92, BGHZ 122, 363-372, para. 8), not just different material bases for claims a uniform procedural claim. The same applies to the right to compensation under data protection law, which concerns a completely different protected interest.

109
However, due to the subsequent specification of the contingency - the order in which the plaintiff bases his payment application on the various procedural claims - the application is now admissible.

110
b) However, the request for payment is unfounded both in the main request and in the auxiliary requests.

111
aa) The plaintiff is not entitled to any immaterial claims for damages due to an infringement of personal rights.

112
Case law has derived from § 823 Para. 1 BGB in conjunction with Art. 1 and 2 GG that the injured party is to be awarded monetary compensation in the event of a serious violation of personal rights, because without such a claim violations of human dignity and honor often remain without sanctions the consequence that the legal protection of the personality would atrophy (Federal Court of Justice, judgment of December 5, 1995 - VI ZR 332/94, para. 13, juris).

113
Even if freedom of expression is seen as an outgrowth of general personality rights, the measures in question do not constitute a serious violation of the plaintiff's personality rights. Even taking into account the importance that the possibility of using F... may have for some people, a temporary blocking does not apply at all a core of personal rights.

114
bb) There is also no claim for damages due to unauthorized use of the content generated by the plaintiff.

115
The defendant did not use content of the plaintiff without authorization; he agreed to the use when concluding the contract of use. Even if the defendant did not behave completely in accordance with the contract, this does not mean that the plaintiff's consent is lost.

116
In addition, the plaintiff did not incur any financial loss as a result of the defendant's actions. The financial position of the plaintiff has not changed as a result.

117
cc) The plaintiff is also not entitled to a claim for damages pursuant to Art. 82 (2) sentence 1 GDPR. The measures taken by the defendant - regardless of their admissibility - do not constitute a violation of the GDPR. The use of the plaintiff's data took place with his consent. The fact that the defendant acted in breach of duty when deleting the post and blocking it does not change that.

118
4. The appeal motion to 12 (indemnification claim in relation to out-of-court attorneys' fees) is unfounded.

119
a) A claim for damages in accordance with Section 280 (1) of the German Civil Code (Bürgerliches Gesetzbuch, BGB) can be considered if the main action is well-founded. However, it cannot be assumed that the plaintiff incurred corresponding out-of-court legal fees. A business fee according to No. 2300 RVG-VV would only have been incurred for the pre-trial activity of the plaintiff’s legal representative if the plaintiff had commissioned this extrajudicial activity without at the same time issuing an unconditional order to sue (cf. BGH, judgment of August 15, 2019 – III ZR 205/17, paragraph 43). The plaintiff has not submitted anything in this regard, although the defendant has denied the out-of-court costs.

120
In addition, Annex K 35 shows that the legal expenses insurer paid any out-of-court costs incurred by the plaintiff. Therefore, a possible claim for exemption by the plaintiff would no longer exist, but a claim for payment from the assigned right of the insurer, which the plaintiff, however, does not assert.

121
b) The plaintiff cannot assert any right of exemption for obtaining the cover notes from his legal protection insurer.

122
The legal costs caused by the breach of duty by the defendant are only to be reimbursed insofar as they were necessary and expedient from the point of view of the plaintiff to exercise his rights (cf. BGH, judgment of March 9, 2011 - VIII ZR 132/10, para. 23 f ., juris; judgment of December 13, 2011 – VI ZR 274/10, paragraph 20 f., juris). As a rule, the injured party can be expected to request the cover note himself (ibid.). It is not apparent that the plaintiff would not have been able to send a simple request to the insurer, possibly enclosing the draft of the warning letter or complaint prepared by his legal representative. There is also nothing to indicate that it was to be assumed from the outset that the insurer would only grant coverage if requested to do so by a lawyer. This also does not result from the submitted correspondence with the insurer (Appendices K 36 - K 42).

123
It can therefore be left undecided whether obtaining the cover notes is an independent matter according to Section 15 (2) RVG or whether it merely represents ancillary activities that are not to be remunerated separately (Section 19 RVG). In any case, an independent matter should not exist if the lawyer's activity is limited to sending the draft lawsuit or the draft of a warning letter and the lawyer did not have to examine in more detail whether the intended prosecution according to the insurance conditions is included in the insurance cover at all . There is nothing evident here for such an examination of the insurance cover.

C

I

124
The decision on costs is based on Section 92 Paragraph 1, Section 97 Paragraph 1 ZPO. The decision on the provisional enforceability is based on § 708 No. 10, § 713 ZPO.

II.

125
The approval of the revision according to § 543 ZPO was not prompted. The litigation is not of fundamental importance. The further development of the law does not require a decision by the Court of Appeals either. This also applies to the right to data correction. In this respect, the decision is not based on a divergence from the case law of other higher regional courts, but primarily on a different factual basis with regard to the stored data.

III.

126
The amount in dispute determined for the court of appeal is based on the following individual amounts in dispute:

127
Appeal Requests:

        
Application for 2

Data correction (first post)

€1,250

Application for 3

Determining the illegality of deleting a post and banning it for 30 days (first post)

€2,000

Application for 4

Recovery of deleted post (first post) - short post

€500

Application for 5

Determining the illegality of post deletion and 30-day ban (second post)

€2,000

Application for 6

Recovery of deleted post (second post) - short post

€500

Application for 7

Refrain from future deletion and blocking (first post)

€1,500

Application for 8

Refrain from future deletion and blocking (second post)

€1,500

Application for 9

Information on the commissioned company (both posts)

2 x €500

Application for 10

Information on measures taken by the federal government (both posts)

2 x €500

Application for 11

Payment of €3,000
3 times because of auxiliary applications, each with three disputed items, § 45 para. 1 sentence 2 GKG, after a corresponding change in the application in the appeal instance

€9,000

Application for 12

Exemption from extrajudicial legal fees

-

overall thus

        
€20,250

D

128
The pleadings of the parties that have not been submitted do not give reason to reopen the oral hearing (§ 156 ZPO). The submission does not lead to a different assessment. These are legal statements on the decisions of the Federal Court of Justice that have been made in the meantime.