OLG Koln - 15 U 45/23

OLG Köln - 15 U 45/23
Court:	OLG Köln (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 16 GDPR Article 17(1) GDPR Article 17(3)(e) GDPR § 241(2) BGB § 314(2) BGB
Decided:
Published:	25.01.2024
Parties:
National Case Number/Name:	15 U 45/23
European Case Law Identifier:	ECLI:DE:OLGK:2024:0125.15U45.23.00
Appeal from:	LG Köln (Germany) 28 O 107/22
Appeal to:	Unknown
Original Language(s):	German
Original Source:	OLG Köln (in German)
Initial Contributor:	nho23

A court held that a social network is not obligated to erase files documenting the blocking of the data subject's account when data could be needed for future legal disputes.

English Summary

Facts

The data subject was a user of the controller’s social network. The controller deleted posts of the data subject and then later deactivated their account.

The data subject went to the lower instance court (LG Köln) to order the controller to reactivate their account and to correct the data subject’s data. This included erasing all deletion and blocking notices from the controller’s database and resetting the counter that records the data subject’s offences on the social network. The data subject also wanted the controller to be refrained from blocking or deactivating their account without prior notice and to pay damages of €1,500.

The LG Köln upheld the claims that the controller had to reactivate the data subject’s account, give them information on whether the deactivation happened through an authorised company, and if so what company. The LG Köln did not uphold the remaining claims that the controller should correct the data it has from the data subject, refrain from blocking or deactivating the data subject's and pay damages of €1,500 to the data subject.

The data subject appealed the latter part of the decision to the Higher Regional Court Cologne (“OLG Köln”).

The data subject repeated and expanded their arguments, stating that it is unlawful under the GDPR for the controller to store their data on the deletion and blocking notices as they do not longer count as an infringement after a certain period of time. Moreover, the controller would still have documents relating to the legal dispute and the notices for future legal disputes, thus storing this data in the controller’s data record is not necessary.

The controller stated that the processed personal data is necessary for legal claims and cannot be deleted because data on violations of community guidelines need to be stored for possible legal cases.

Holding

First, the Court held that the controller had no duty to erase all deletion and blocking notices in its database. The request for erasure under Article 17(1) GDPR is not applicable, because under Article 17(3)(e) GDPR, the processing was necessary for the defence of future legal disputes. Moreover, in its argument, the data subject did not explain what documents the controller should have even if their data would be deleted.

Second, the Court held that the controller did not have to reset the counter (counting the amount of the user's community guideline violations) because the data subject did not claim that the number of blocks were incorrect. Under Article 16 GDPR, the controller is only obligated to rectify inaccurate personal data of the data subject. The controller's count of the number of user’s violations and storing this number was a legal assessment, not a fact subject to proof of truth and thus not subject to rectification. The Court explained that value judgements made by private individuals are generally excluded from the scope of the duty to rectify due to the protection of freedom of expression, provided they do not contain factual inaccuracies. The controller’s obligation to respect its users interests and their right to informational self-determination does not require the controller to legally assess certain users’ behaviours in a certain way.

Finally, the controller does not have the obligation to inform the data subject in advance of the deactivation or blocking of their account. The Court stated that this is due to the social networks' duty to remove illegal content without undue delay. Thus, the controller has a right to deactivate an account, in urgent cases, without informing the data subject in prior according to § 314(2) BGB but has to give them a notice immediately after.

The Court therefore dismissed the data subject's appeal.

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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.

1Reasons:
2I.
3The plaintiff was a registered user of the social network S. operated by the defendant's parent company and, as such, was a contractual partner of the defendant. On November 28 and December 11, 2021, and on January 5 and 13, 2022, the plaintiff published posts on his profile, which the defendant removed on the same day. On February 13, 2022, the defendant deactivated the plaintiff's user account and sent him a corresponding message.
4With the contested judgment, to which reference is made for all further details of the undisputed facts as well as for the first instance submissions and applications, the Regional Court ordered the defendant, as requested, to completely restore the plaintiff's profile, to provide the plaintiff with information as to whether the deactivation of his profile was carried out by a commissioned company and, if so, by which company, and to indemnify the plaintiff for out-of-court legal costs. Insofar as the plaintiff also requested that the defendant be instructed to correct the data stored by it, to refrain from blocking the plaintiff or deactivating his account, and to instruct the defendant to pay the plaintiff damages in the amount of €1,500, the district court dismissed the action. The plaintiff is pursuing these applications with his appeal. The defendant has withdrawn its appeal.
5The plaintiff repeats and expands on his legal arguments from the first instance in the appeal proceedings. With regard to the claim asserted in the appeal application under a, he believes that the storage of an unlawful deletion and blocking process, which, according to the defendant's own claim, is no longer counted as a violation after a certain period of time, is unlawful in several ways from a data protection perspective and is also not necessary for the assertion, exercise or defense of legal claims. In the event of a conviction to delete the data as requested, the defendant would still be in possession of the documents relating to the current legal dispute and the deleted, unlawfully created notes even after the notes had been deleted, except that these notes were no longer in the plaintiff's data set. The right to deletion follows from Art. 17 Para. 1 GDPR, and also from Section 280 Para. 1 and Section 249 Para. 1 BGB. To the extent that the regional court failed to provide conclusive evidence of the deletions that had taken place in the past, this was doubly wrong. Firstly, the right to deletion exists because the defendant no longer needs the data, even if the plaintiff had actually violated the Community standards. Secondly, it is the defendant who claims to be allowed to collect data on alleged breaches of contract by the plaintiff; it is therefore also the defendant's responsibility to present evidence of this. 6The plaintiff requests, in essence,
7to partially amend the contested judgment and, with regard to the injunction under threat of administrative sanctions, to additionally order the defendant to
8a) correct the plaintiff's data stored by it so that all deletion and blocking notes are deleted from the user data set and the counter that records the violations underlying the individual blocks is completely reset,
9b) to refrain from blocking the plaintiff on S. (in particular, from denying him the use of S.'s functions such as posting contributions, commenting on other people's contributions and using the messaging system) or deactivating his account without informing him in advance of the intended blocking/account deactivation and granting the opportunity to respond with a subsequent new decision,
10c) to pay the plaintiff €1,500 plus interest at a rate of five percentage points above the base interest rate since February 13, 2022.
11The defendant requests that
12               the plaintiff's appeal be dismissed.
13It defends the contested decision. In particular, the claim asserted in the appeal application under a arises neither from the contract nor from Art. 16 or 17 GDPR. Insofar as the plaintiff's personal data is processed, this is necessary to defend against legal claims by the defendant. The content that violates community standards is still contrary to the contract. It is therefore necessary to document such violations in the event of impending or pending legal proceedings. The plaintiff does not explain in any way which documents of the defendant - as claimed by the plaintiff - should be available even if the data has been deleted.
14II.
15The plaintiff's appeal is unsuccessful. The regional court rightly dismissed the action in part.
161. The international jurisdiction of the Cologne Regional Court follows in any case from the fact that the defendant entered into the proceedings without claiming a lack of jurisdiction (Article 26 paragraph 1 of Regulation (EU) 1215/2012).
172. Furthermore, it is undisputed that the contractual relationship between the parties is subject to German law.
183. The first instance application under 2, which the plaintiff is pursuing with the appeal application under a, is unfounded.
19a) With this application, the plaintiff requests, on the one hand, "that all deletion and blocking notes be deleted from the user data record". The defendant is not obliged to do this.
20To the extent that the application covers the information presented in the present proceedings and evident from the facts of the contested judgment regarding deletions of the plaintiff's contributions of 28 November and 11 December 2021 and of 5 and 13 January 2022, the claim for deletion asserted in this respect, which can only arise from Art. 17(1) GDPR, is excluded under Art. 17(3)(e) GDPR because the processing is necessary to defend legal claims. With regard to possible enforcement proceedings and also with regard to possible future legal disputes between the parties, there can be no doubt that the defendant is permitted to continue to store the facts on the basis of which it was legally sentenced by the regional court to restore the plaintiff's profile and that it is also permitted to continue to store the regional court judgment itself (cf. OLG Karlsruhe, judgment of May 26, 2023 - 10 U 24/22, MMR 2023, 962 para. 124 for ongoing proceedings). In this respect, the dispute differs from the case underlying the judgment of the Stuttgart Higher Regional Court of December 20, 2023 - 4 U 49/23 - submitted by the plaintiff (annex to the written submission of December 21, 2023). In the proceedings decided by the Stuttgart Higher Regional Court, after further applications had been legally rejected, only the claim for data correction, as described by the plaintiff, was pursued further. 21According to the grounds of appeal, the plaintiff himself also appears to assume that the defendant does not have to delete the documents relating to the present legal dispute and that his request is only aimed at "that these notes are no longer present in the plaintiff's data set with the risk of further data processing" (page 11). However, such a restriction is not expressed in the application. It would also be vague because it is unclear what is meant by "plaintiff's data set". Furthermore, the plaintiff cannot dictate to the defendant how it structures its data concerning him.
22Despite the statements in the contested judgment on this matter, the plaintiff still does not provide any substantive evidence that the defendant has removed posts by the plaintiff and blocked his profile in addition to the cases presented in the facts of the contested judgment. It is up to him to state which data the asserted claim for deletion should actually refer to. Only on the basis of such a statement can it be checked whether the data is being stored lawfully.
23b) On the other hand, the plaintiff requests "that the counter that records the violations underlying the individual blockings be completely reset." The defendant is not obliged to do this either.
24Such a claim does not follow from Art. 16 sentence 1 GDPR. This is because the plaintiff does not claim that the number of blockings actually carried out is incorrectly recorded in the defendant's database (see OLG Karlsruhe, judgment of May 26, 2023 - 10 U 24/22, MMR 2023, 962 para. 123). To the extent that the defendant considers the events that led to blockings to be violations of its terms of use and notes this in its database by counting the violations it has confirmed, the number stored is not a fact that can be proven to be true, but a legal assessment. Value judgments made by private individuals are, in principle, excluded from the scope of the obligation to correct data due to the protection of freedom of expression, insofar as they do not contain any factual elements (cf. OLG Celle, judgment of 20 January 2022 - 13 U 84/19, MMR 2022, 399 marginal no. 45; OLG Karlsruhe, judgment of 26 May 2023 - 10 U 24/22, juris marginal no. 255 in MMR 2023, 962 not printed in this respect; LG Frankfurt am Main, judgment of 3 September 2020 - 2-03 O 48/19, MMR 2021, 271 marginal no. 89 f; Worms in BeckOK Datenschutzrecht, Art. 16 DSGVO marginal no. 54 [as of 1 August 2023]; Herbst in Kühling/Buchner, DS-GVO BDSG, 4th edition, Section 16 GDPR marginal no. 8 et seq.). The defendant's own legal opinion stored on how often the plaintiff has violated the terms of use does not bind the plaintiff and does not have any legal disadvantages for him (cf. OLG Celle, judgment of January 20, 2022 - 13 U 84/19, MMR 2022, 399 marginal no. 45).
25The claim also does not arise from the user agreement between the parties in conjunction with Section 241 (2) of the German Civil Code. The defendant's obligation to take into account the interests of its users and their right to informational self-determination does not require the defendant, for the reasons stated above, to legally assess certain behaviors of its users in a certain way. Insofar as this is assessed differently in the higher court jurisprudence without further justification (cf. OLG Munich, judgments of 7 January 2020 - 18 U 1491/19, MMR 2021, 79 marginal no. 146; of 12 April 2022 - 18 U 6473/20, juris marginal no. 45; OLG Rostock, judgment of 29 September 2021 - 2 U 4/20, juris marginal no. 25 et seq.; OLG Dresden, judgment of 8 March 2022 - 4 U 1050/22, MMR 2022, 479 marginal no. 14; OLG Karlsruhe, judgment of 24 May 2022 - 14 U 270/20, juris marginal no. 53), this contradicts, in the opinion of the Senate, the assessments that were used to deny of a claim under Art. 16 sentence 1 GDPR, without there being any apparent reason why these assessments should not also be decisive for the interpretation of the contract and for the determination of contractual duties of consideration (see also OLG Karlsruhe, judgment of 26 May 2023 - 10 U 24/22, MMR 2023, 962 para. 123).
26In the case in dispute, it is also important to note that, unlike in cases in which a contractual claim for data correction has been affirmed to date, this claim is not linked to a claim for injunctive relief due to a specific violation. Irrespective of the award of the right to restore the profile, the plaintiff is also entitled to claims for injunctive relief from further deletion of the posts reproduced in the facts of the contested judgment when they are posted again (see BGH, judgment of July 29, 2021 - III ZR 179/20, BGHZ 230, 347 para. 100). If he were to assert these claims in court in the future and if he were already granted the asserted claim for correction in the present proceedings, there would be a risk that the question of whether the individual posts are to be regarded as violations of the plaintiff's contractual obligations would be assessed differently in the respective court proceedings.
274. The first instance application under 3, which the plaintiff is pursuing with the appeal application under b, is admissible but also unfounded.
28a) Contrary to the assumption of the Regional Court, the plaintiff is not requesting the fulfillment of information obligations with this application. Rather, he is demanding that the defendant refrain from blocking him or deactivating his account. With the addition "without informing in advance about the intended blocking/account deactivation and granting the opportunity to respond with a subsequent new decision", the plaintiff is not asserting a claim aimed at providing information, but is merely restricting the asserted obligation to refrain from doing so (cf. OLG Munich, judgment of September 20, 2022 - 18 U 6314/20, GRUR 2023, 96 marginal no. 30; a.A. OLG Frankfurt, judgment of June 30, 2022 - 16 U 229/20, juris marginal no. 61)
29b) Contrary to the defendant's opinion, the application is sufficiently specific (Section 253 (2) no. 2 ZPO).
30The application does not reproduce a legal wording that requires interpretation (cf. BGH, judgment of 26 January 2017 - I ZR 207/14, GRUR 2017, 422 marginal no. 18), but it contains a sufficiently concrete and clear description of the act to be refrained from (cf. OLG Munich, judgment of 20 September 2022 - 18 U 6314/20, GRUR 2023, 96 marginal no. 15; OLG Karlsruhe, judgment of 24 May 2022 - 14 U 270/20, juris marginal no. 55; dissenting opinion OLG Frankfurt, judgment of 30 June 2022 - 16 U 229/20, juris marginal no. 59 et seq.). If the application were successful, the defendant would have to refrain from blocking the plaintiff or deactivating his account unless it informed him in advance of the intended blocking or deactivation and gave him the opportunity to respond.
31Whether there are cases in which the defendant is entitled to block the plaintiff or deactivate his account without informing him in advance and giving him the opportunity to respond is not a question of the specificity, but of the merits of the application. The lack of specificity must be distinguished from the overly broad wording of the application for a ban (see only Zöller/Greger, ZPO, 35th ed., § 253 marginal no. 13b).
32Furthermore, the application is not vague because cases in which the defendant claims a violation of statutory provisions are excluded. Contrary to the plaintiff's statements, such a - possibly vague - restriction cannot be inferred from the application.
33c) The application is unfounded because it is too broad.
34aa) Even if one assumes that the defendant's terms of use do not effectively regulate a right to block an account (see BGH, judgment of July 29, 2021 - III ZR 179/20, BGHZ 230, 347, marginal no. 30 ff. for an older version of the terms of use), and even if one disregards the possibility of a future change to the terms of use (see OLG Karlsruhe, judgment of May 24, 2022 - 14 U 270/20, juris marginal no. 57), there may be cases in which the defendant is entitled to block the plaintiff without informing him in advance of the intended blocking and giving him the opportunity to respond with a subsequent new decision (see Senate decision of June 9, 2022 - 15 W 30/22, n.v.). In particular, the defendant is required to take immediate action to remove or block criminal content in its social network as soon as it has become aware of facts or circumstances from which the illegality of the contributions becomes obvious (see BGH, judgment of July 29, 2021 - III ZR 179/20, BGHZ 230, 347, marginal no. 98). The permissible and necessary measures - regardless of the effectiveness of a contractual authorization to block an account - may also include the temporary blocking of a user account (see OLG Munich, judgment of April 12, 2022 - 18 U 6473/20, juris marginal no. 50 et seq.). The defendant does not have to inform the user of such decisions in advance - as expressly stated in the application - but only immediately (Section 3 (2) sentence 1 no. 5 NetzDG). The claim, according to which the defendant should be prohibited without exception - even in the case of criminal content - from blocking the plaintiff without informing him in advance, therefore goes too far (in the same result OLG Karlsruhe, judgment of May 26, 2023 - 10 U 24/22, MMR 2023, 962 para. 134; KG, decision of February 20, 2023 - 10 W 85/22, MMR 2023, 509 para. 28).
35The plaintiff cannot be awarded a narrower claim for injunctive relief as a minus. Because whether the conditions for blocking without a hearing are met can only be assessed in each individual case (see OLG Munich, judgment of April 12, 2022 - 18 U 6473/20, juris para. 52; KG, decision of February 20, 2023 - 10 W 85/22, MMR 2023, 509 para. 29).
36Whether the defendant must refrain without exception from blocking the plaintiff without at least subsequently informing him of the reason for the blocking immediately (see OLG Munich, judgment of September 20, 2022 - 18 U 6314/20, GRUR 2023, 96 para. 32) can be left aside because such an obligation to refrain is not covered by the present application and the grounds of the action.
37bb) The present application is also too broad insofar as the defendant is to be prohibited from deactivating the plaintiff's account. According to No. 4.2 of the Terms of Use, the defendant's right to terminate for good cause does not require the defendant to inform the plaintiff in advance of the intended deactivation and to give him the opportunity to respond. In the event of a breach of an obligation under the Terms of Use, the right to terminate requires a period of time for remedy or a warning. It is also important to note that, according to No. 4.2 of the Terms of Use and Section 314 (2) of the German Civil Code, a period of time for remedy is not required if the other party seriously and definitively refuses to fulfill its obligations or if, after weighing up the interests of both parties, special circumstances justify immediate termination. Notwithstanding the correct considerations of the Regional Court regarding the invalidity of the termination of February 13, 2022, there may also be cases in which the defendant is entitled to terminate for good cause without informing the plaintiff in advance of the intended termination. 385. The first instance claim under point 5, which the plaintiff is pursuing with the appeal under point c, is, as the defendant rightly complained in the first instance, inadmissible.
39An alternative joinder of claims, in which the plaintiff derives a single claim from several procedural claims and leaves it to the court to choose on which grounds of action it will base the conviction, violates in principle and also in the present case the requirement of Section 253 Paragraph 2 No. 2 of the Code of Civil Procedure to specify the grounds of action (cf. BGH, judgment of November 21, 2017 - II ZR 180/15, NJW 2018, 1259, marginal no. 8 with further references). Accordingly, the present application is inadmissible. According to the statements in the statement of claim, the plaintiff is claiming both material and immaterial damages with equal priority, without dividing the total amount of €1,500 claimed between the immaterial and material damages. A claim for immaterial damages is a different subject matter of dispute than a claim for compensation for financial loss (see only BGH, judgments of March 18, 1959 - IV ZR 182/58, BGHZ 30, 7, 18; of August 19, 2014 - VI ZR 308/13, NJW 2014, 3300, marginal no. 10; Zöller/Vollkommer, ZPO, 34th ed., Introduction marginal no. 73).
40The Senate pointed out to the plaintiff in the oral hearing that the application was inadmissible. The plaintiff then expressly refrained from changing the application. It can therefore be left open whether the plaintiff is entitled to neither a claim for material nor a claim for non-material damages (see, for example, OLG Munich, judgment of 7 January 2020 - 18 U 1491/19, MMR 2021, 79 marginal no. 159 ff.; OLG Nuremberg, judgment of 4 August 2020 - 3 U 4039/19, GRUR-RS 2020, 50445 marginal no. 131 ff.; OLG Dresden, judgment of 11 June 2019 - 4 U 760/19, CR 2020, 338, 340 f.).
416. The procedural ancillary decisions are based on Section 97 (1), Section 516 (3) sentence 1, Section 708 no. 10, Section 711 ZPO. The cost ratio differing from that of the first instance is explained by the fact that in the appeal proceedings the plaintiff must bear the costs alone in the amount of the hearing fees - which are calculated at a lower value.
427. Insofar as the appeal application under a is rejected, ensuring uniform case law requires a decision by the appeal court (Section 543, Paragraph 2, Sentence 1, No. 2, Alternative 2 of the Code of Civil Procedure). As explained under point 3, letter b, the Senate deviates from the case law of several other higher regional courts with the present decision. With regard to the other appeal applications, however, the conditions for the admission of the appeal are not met (Section 543, Paragraph 2, Sentence 1 of the Code of Civil Procedure).
43Amount in dispute in the appeal proceedings: €14,750, but only €4,250 for the hearing