LG Traunstein - 9 O 173/24

LG Traunstein - 9 O 173/24
Court:	LG Traunstein (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 6(1)(f) GDPR Article 6(1)(a) GDPR Article 13 GDPR Article 14 GDPR Article 45(3) GDPR Article 46(2)(c) GDPR Article 49(1)(b) GDPR Article 3 Regulation (EU) 2021/1232
Decided:	08.07.2024
Published:
Parties:
National Case Number/Name:	9 O 173/24
European Case Law Identifier:
Appeal from:
Appeal to:	Unknown
Original Language(s):	German
Original Source:	Bayern.Recht (in German)
Initial Contributor:	fb

In a case about non-material damages, a court ruled that a controller that manages a social media platform can lawfully transfer data to the USA relying on an adequacy decision and, before the approval of the latter, on SCCs.

English Summary

Facts

The data subject is a user of a social network platform, which also provides a messaging service. This platform is managed by a company with its headquarter in the USA.

The data subject initiated a lawsuit before the Regional Court of Traunstein (Landesgericht Traunstein – LG Traunstein).

Firstly, she argued that the controller is constantly monitoring her private messages and that the privacy policy is not transparent and is too complex.

Secondly, she argued that, through cookies, the controller is collecting data relating to activities that happen outside the social network without her consent.

Thirdly, she claimed that the controller forwarded all her personal data from and in connection with her account to the USA. She argued that this transfer is unlawful since the USA did not guarantee a level of protection equivalent to the GDPR.

Therefore, the data subject asked the court to order the controller to pay non-material damages.

As for the first argument, the controller pointed out that it conducts scans on the private messages only when to detect child sexual abuse material (CSAM) in compliance with the ePrivacy Directive 2002/58/EC (see Article 3 Regulation (EU) 2021/1232).

Moreover, the controller argued that it is respecting its transparency obligations and that the transfer of data to the US is legal since there is an adequacy decision and, before that, there were SCCs.

Holding

First of all, the court ruled that the data subject has not demonstrated that the controller is systematically and automatically monitors the content exchanged via the messenger service. In every case, it found that the controller has proven that it carries out only permissible CSAM scanning. According to the court, this processing is covered by the legal basis provided for by Article 6(1)(f) GDPR.

Secondly, it held that, due to the extensive data protection requirements that are imposed on the controller, the privacy policy cannot be more concise or simpler. Therefore, it found no violation of Article 13 and 14 GDPR.

Thirdly, it did not uphold the data subject’s argument about cookies. It found that the controller could rely on consent under Article 6(1)(a) and 9(2)(a) GDPR to collect this data.

Fourthly, the court noted that the social media platform at hand is designed as a global platform whose aim is to allow users to have a worldwide network and allow users to have “friends” from all over the World. Therefore, according to the court, it is obvious – and also the data subject should know this – that data is also transmitted to the USA, especially since the search for users in other jurisdictions can only work if there is a cross-border exchange of data.

Moreover, the court believed that the business decision of the controller transfer data to the USA is to be accepted by the data subject since no one is forced to use the platform.

Furthermore, it held that the data transfer at hand is necessary for the performance of a contract and, therefore, lawful under Article 6(1)(b) GDPR.

Finally, as for Chapter V GDPR, the court pointed out that currently the controller can rely on the Commission Implementing Decision EU 2023/1795 which allows data transfers to the USA under Article 45(3) GDPR.

As for the preceding period, it found that the standard contractual clauses adopted by the European commission in 2010 and 2021 according to Article 46(2)(c) GDPR provide a sufficient legal basis. According to the court, the fact the US government authorities can access the data transferred by the controller does not prevent the guarantee of an essentially equal level of protection since it is also possible for EU authorities to have such an access under Article 6(1)(c) GDPR.

Moreover, the court ruled that the data transfer is however lawful since it is necessary for the performance of the contract under Article 49(1)(b) GDPR.

On these grounds, the court dismissed the data subject's requests.

Comment

This judgement seems not to be consistent with the settled case law of the CJEU. In particular, in C-311/18, Schrems II, the CJEU ruled that when personal data are transferred to a third country pursuant to standard data protection clauses, a level of protection essentially equivalent to that guaranteed within the European Union must be afforded. To operate this assessment, not only the content of the SCCs must be taken into account, but also the relevant aspects of the legal system of that third country, as regards any access by the public authorities of that third country to the personal data transferred (para. 105).

In the same case, the CJEU found that the legal system of the USA does not guarantee an equivalent level of protection (paras. 198-199).

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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.

Key Points:
1. The extensive data protection requirements imposed by law, including those on operators of social networks, combined with the complexity of the services regularly provided by these networks, do not allow for a concise or simple presentation of the data protection framework. Therefore, lengthy and seemingly confusing data protection policies generally do not constitute a violation of Articles 13 and 14 of the GDPR. (Paragraph 24) (Editorial Guideline)
2. A global social network based in the USA cannot be accused of unlawful data transfer to the USA. If the social network is designed as a global platform, data must necessarily be exchanged internationally to maintain the worldwide network. Data transfer is thus generally required for contract fulfillment under Article 6(1)(b) GDPR. (Paragraphs 29-30) (Editorial Guideline)
3. A user of a globally operated social network cannot demand that all data of the network in question be stored and processed in Europe. The business decision of the platform operator to process the relevant data outside Europe must be accepted by the users, especially since no one is forced to use such platforms. (Paragraph 29) (Editorial Guideline)

Judgment:
1. The lawsuit is dismissed.
2. The plaintiff shall bear the costs of the legal dispute.
3. The judgment is provisionally enforceable for the defendant against security in the amount of 110% of the amount to be enforced.

Order:
The amount in dispute is set at €7,000.00.

Statement of Facts:

1. The plaintiff is suing the defendant for damages, an injunction, deletion, and information due to violations of the General Data Protection Regulation (GDPR), particularly in connection with the monitoring of the ... messenger service, processing of "Off-... Data," and data transfer to the USA.

2. The defendant operates the social network "...". The plaintiff maintains a user profile there, where the name, gender, and user ID are always publicly visible, and other data provided by the user is visible depending on the selected settings.

3. The "...” also includes a messenger service through which "...” users can exchange messages and files.

4. The plaintiff claims that there is no valid consent for data processing by the defendant. The plaintiff suffers from a loss of control over their data and is concerned about potential misuse of their data. The plaintiff had provided their phone number for security purposes only and assumed they could access this information exclusively. The pre-litigation information provided by the defendant was inadequate. Additionally, the messenger service is systematically and automatically monitored (“crawling” of content), which cannot be disabled by the user and is not necessary for contract fulfillment.

5. Data related to activities outside the social network ("Off-... Data") is collected, stored, and evaluated by "..." on a large scale and shared within the ... group. User consent is not obtained. The defendant has forwarded all personal data of the plaintiff from and in connection with the plaintiff's "...” account to the United States of America (USA), specifically to the NSA for random checks and investigations. This is unlawful, as the USA does not guarantee a level of protection equivalent to the GDPR. Moreover, the plaintiff did not consent to the transfer of their data. The data transmitted in enormous quantities practically represents the entire social life of the user. This has caused significant anxiety and stress for the plaintiff. The plaintiff bases the asserted claims for information, injunction, and deletion on Articles 15, 17, and 18 GDPR, Sections 1004 analog, 823(1), and 823(2) of the German Civil Code (BGB) in conjunction with Article 6 GDPR, and the claims for damages on Article 82 GDPR.

6. The plaintiff requests:
   1. The defendant is ordered to pay the plaintiff non-material damages as compensation for data protection violations concerning the indiscriminate monitoring of chat messages sent and received by the plaintiff via the ... messenger service and the collection, use, and evaluation of the plaintiff's "Off-... Data," with the amount to be determined at the discretion of the court, but not less than €1,500.00, plus interest at five percentage points above the respective base rate from the date of pendency.
   2. The defendant is further ordered to pay the plaintiff non-material damages as compensation for data protection violations concerning the transfer and transmission of the plaintiff's personal data to the USA, particularly to the NSA, with the amount to be determined at the discretion of the court, but not less than €1,500.00, plus interest at five percentage points above the respective base rate from the date of pendency.
   3. It is declared that the defendant is obliged to compensate the plaintiff for all future damages arising from a) the indiscriminate monitoring of chat messages sent and received by the plaintiff via the ... messenger service and the collection, use, and evaluation of the plaintiff's "Off-... Data" and b) the transfer and transmission of the plaintiff's personal data to the USA, particularly to the NSA, that have occurred and/or will occur.
   4. The defendant is further ordered, under penalty of a fine of up to €250,000.00 for each case of infringement, alternatively to be enforced by custodial detention of the defendant's legal representative (Director) for up to six months, in the event of repeated infringement up to two years, to refrain from:
      a) indiscriminately monitoring chat messages of the plaintiff sent via the "...-Messenger" service,
      b) collecting, using, and evaluating the plaintiff's "Off-... Data,"
      c) transferring the plaintiff's personal data to the USA, particularly to the NSA.
   5. The defendant is ordered to provide the plaintiff with information:
      a) about the monitored, evaluated, and stored data from the monitoring of the ... messenger, specifically to present chat logs and disclose their internal evaluation, as well as delete this data if stored indiscriminately,
      b) about which "Off-... Data" was collected at the plaintiff's IP address by the defendant and for what purpose it was stored and used, as well as delete this data if stored indiscriminately,
      c) about the specific manner in which the plaintiff was affected by the transfer of their personal data to the USA, particularly to the NSA, i.e., who accessed the plaintiff's data and when, and which exact personal data of the plaintiff was viewed by whom.

7. The defendant requests the dismissal of the lawsuit.

8. The defendant objects to the indeterminacy of the plaintiff's claims and the lack of interest in declaratory relief and need for legal protection. The defendant denies any data protection violation. The defendant argues that its transparency obligations are fulfilled. All users are adequately informed about the settings to protect their privacy (in particular, audience selection and searchability settings) according to the defendant's data policy. The purpose of the "...” platform is to find and connect with other people, which would be counteracted by pre-setting the searchability settings to "Friends" instead of "All". There was no obligation to report or notify. The defendant provided pre-litigation information about its data processing activities, and it is not obliged to provide information about third-party data processing activities. The plaintiff did not suffer any noticeable impairment; loss of control or discomfort does not constitute damage.

9. The defendant further argues that it treats all messages transmitted via the messenger service confidentially. The ePrivacy Directive is followed by the defendant. The defendant conducts a so-called CSAM scanning according to Article 3 of the CSAM Regulation to identify child pornographic content. The data processing in connection with the messenger service is explained in the defendant's privacy policy. "Off-... Data," i.e., information about activities outside the ... technologies, is obtained by the defendant from third-party providers, who are responsible for ensuring that the collection and transfer of data is based on a valid legal basis, particularly obtaining any necessary consent. Additionally, the defendant uses the data only if the user has agreed via a cookie banner unless the processing is necessary for security and integrity purposes. The settings can be changed subsequently. The transfer of data by the defendant to ..., Inc. in the USA is based on Chapter V of the GDPR, the Commission's 2023 Adequacy Decision, and the Standard Contractual Clauses of 2010 and 2021. "...” is a global service, so cross-border data exchange is necessary for contract fulfillment. Specific requests from US government agencies under Section 702 of the Foreign Surveillance Act (FISA) are reviewed for legality before being answered. As ..., Inc. is prohibited by US law from disclosing information about such requests, the defendant is also not obliged to do so.

10. The defendant objects to the lack of specificity in the plaintiff's claims and the lack of need for legal protection or interest in declaratory relief. The defendant raises the defense of limitation.

11. The plaintiff had previously filed a lawsuit against the defendant under file number 9 O 989/23, including a claim for non-material damages in connection with so-called "web scraping," which was largely dismissed by a (non-final) judgment on 17 January 2024.

12. The court held an oral hearing on the matter on 17 June 2024 and informally heard the plaintiff. For further details, reference is made to the exchanged pleadings and the hearing record.

Reasons for the Decision:

13. The partially inadmissible lawsuit is entirely unfounded.

A.

14. The lawsuit is

 only partially admissible.

15. I. The Regional Court Traunstein has jurisdiction under Sections 1 of the Code of Civil Procedure (ZPO), 71(1), 23 of the Courts Constitution Act (GVG), and internationally under Article 79(2) Sentence 2, Article 82(6) GDPR and locally under Section 44(1) Sentence 2 of the Federal Data Protection Act (BDSG).

16. II. The plaintiff's claim for a declaratory judgment on the defendant's liability for future damages is not sufficiently specific under Section 253(2)(2) ZPO. The claim for a declaratory judgment on the defendant's liability for future damages is not sufficiently specific under Section 253(2)(2) ZPO. The claim refers to "future damages" that "have occurred and/or will occur." Even considering the entire plaintiff's submissions, it is unclear to the court whether the claim relates only to future damages or also to already incurred but possibly not yet known damages.

17. III. There is also no sufficient interest in declaratory relief (Section 256(1) ZPO) concerning the declaratory judgment claim. A declaratory interest must be denied if, from the perspective of the injured party, there is no reason to expect that damage may at least be anticipated (Federal Court of Justice, NJW-RR 2007, 601). The court cannot see, nor is it plausibly explained, what damage the plaintiff is supposed to suffer from the defendant's unlawful monitoring of their messenger messages, processing of "Off-... Data," and data transfer to the USA.

18. IV. The plaintiff's request for an injunction under point 4(a) of the claims is not sufficiently specific under Section 253(2)(2) ZPO. The word "indiscriminately" limits the request for an injunction in an objectively indeterminable way. A corresponding ruling would not be enforceable.

19. V. The plaintiff lacks the need for legal protection concerning the request for an injunction under point 4(b). The plaintiff has the option to control the handling of "Off-... Data" or "Activities outside ... technologies" through the settings. The plaintiff must have been aware of this at the latest due to the defendant's submissions in the legal dispute. Since a simpler way is available to achieve their legal protection goal, the plaintiff lacks the need for an injunction.

20. VI. The request for deletion of "indiscriminately stored" data (points 5(a) and (b) of the claims) is inadmissible due to indeterminacy for the reasons mentioned above under point IV.

21. VII. Otherwise, the lawsuit is admissible.

B.

22. The lawsuit is – insofar as it is inadmissible, in any case – also unfounded.

23. I. The plaintiff has no claims against the defendant concerning the alleged violations regarding the ... messenger service. There is already no relevant violation of the GDPR.

24. The plaintiff has not plausibly demonstrated that the defendant systematically and automatically monitors the content exchanged via the ... messenger service in the sense of "crawling" the content. This is not evident from the defendant's privacy policy. The defendant has plausibly explained that it treats the transmitted messages in accordance with legal requirements, particularly the ePrivacy Directive, and conducts permissible CSAM (Child Sexual Abuse Material) scanning to identify child pornographic content. The court also sees no violation of Articles 13 and 14 GDPR, despite the plaintiff's complaint about the length and complexity of the defendant's privacy policy. The extensive data protection requirements imposed by law, combined with the complexity of the services provided by the defendant, do not allow for a shorter or simpler presentation of the data protection framework. That the defendant stores and transmits the content exchanged via the messenger service to the recipient is necessary for providing this service, according to Article 6(1)(b) GDPR. Therefore, the court also sees no indication of a violation of the principle of data minimization (Article 5(1)(c) GDPR). The CSAM scanning is covered by Article 6(1)(f) GDPR. Moreover, it is up to the plaintiff – like any "f-user" – to decide whether or not to use the messenger service.

25. II. The plaintiff also has no claims against the defendant concerning the alleged violations regarding "Off-... Data."

26. 1. No data protection violation is evident in this regard either. The processing of data in connection with "Activities outside ... technologies" ("Off-... Data") is covered by the user's consent, Article 6(1)(a) and Article 9(2)(a) GDPR. According to the defendant's submission, which the court has no reason to doubt, the defendant obtains the user's consent via a cookie banner depicted on page 11 of the defendant's brief dated 04 March 2024. The corresponding settings are described transparently and can be changed by the user afterward. The plaintiff is registered with "...,” so they can make the corresponding settings themselves. How this applies to people who are not registered with "...,” is irrelevant, as the plaintiff is not part of this group. The fact that the button "Allow all cookies" is highlighted in blue does not violate Article 25(2) GDPR (privacy-friendly default settings). It is not a "default setting" but a common and permissible visual emphasis that does not affect the user's ability to make an active decision. As far as the defendant receives information from cookies and similar technologies from third parties, it processes this data according to its statements only for security and integrity purposes without the user's consent, which is covered by Article 6(1)(b) GDPR and Article 9(2)(b) GDPR. The plaintiff has not brought any substantial contrary arguments into the legal dispute.

27. 2. As far as the defendant may have processed "Off-... Data" without the necessary consent until the Federal Cartel Office's decision of 06 February 2019 (see press release of 07 February 2019, Annex KE-4), it has not been claimed that the defendant still holds "Off-... Data" from this period concerning the plaintiff. Moreover, any claims arising from this would be time-barred in any case, Sections 195, 199(1), 214(1) BGB. The plaintiff must have been aware of the factual requirements for the claim due to the aforementioned press release or be accused of gross negligence in being unaware. Limitation would have occurred by the end of 2022.

28. III. The plaintiff finally has no claims against the defendant concerning the alleged violations in connection with data transfer to the USA.

29. 1. The court cannot recognize any unlawful data transfer. The platform "..." and the MGroup originate from the USA. "..." is designed as a global platform. To maintain this worldwide network, data must necessarily be exchanged internationally. The fact that data is also transferred to the USA by the defendant in this context is therefore obvious. This necessity is also independent of whether the plaintiff is "friends" with US-American "..." users or not. Because the search for users in other jurisdictions can only work if cross-border data exchange takes place. All this must be well known to any "...," including the plaintiff. The plaintiff has no claim that "...," be operated in such a way that all data is stored and processed in Europe in the sense of a purely European "...". The business decision of the platform operator "...,” to process data in the United States of America, must be accepted by the users, especially since no one is forced to use the platform "...”.

30. 2. Data transfer is therefore generally necessary for contract fulfillment under Article 6(1)(b) GDPR. There are no sufficient factual indications that the defendant, as the plaintiff ultimately claims, provides its entire data stock to the US foreign intelligence service without any prerequisites. What the US government is said to have "admitted" in this regard is not specifically explained by the plaintiff. The defendant has denied such claims, and no evidence was provided by the plaintiff.

31. 3. The defendant complies with the requirements for data transfer to third countries under Chapter V of the GDPR.

32. a) Currently, data transfer is based on the Commission's Adequacy Decision of 10 July 2023. This provides a valid basis for data transfer under Article 45(3) GDPR. Therefore, a further review of the adequacy of the protection level is unnecessary.

33. b) For the preceding period, the Standard Contractual Clauses issued by the Commission in 2010 and 2021, in conjunction with Article 46(1) and (2)(c) GDPR, provide a sufficient legal basis. Under Article 46(1) GDPR, the data subjects must have enforceable rights and effective legal remedies to ensure a level of protection equivalent to EU law. The plaintiff complains that the US legal remedy mechanism is based on a government regulation and not on formal law. However, a regulation is also a law in the material sense. It is not apparent why this should not provide equivalent legal protection.

34. c) Finally, as already stated above, the data transfer is necessary for contract fulfillment and thus permissible under Article 49(1)(1)(b) GDPR.

35. d) As far as data protection authorities hold differing views, they are not binding on the court.

36. 4. There is no conclusive evidence of a violation of Article 5(1)(f) or Article 32 GDPR. It is not apparent from the plaintiff's submissions why there should be reason to believe that the defendant does not adequately protect the plaintiff's data in technical or organizational terms.

37. 5. The court also cannot see a violation of Article 13 GDPR. The defendant has provided the references where the user can find information about the necessity of data transfer to foreign companies, particularly ..., Inc., as well as about the disclosure of

 government requests. It is not apparent that the defendant failed to fulfill its information obligation.

38. 6. As far as US government agencies, including intelligence services, can request information from ..., Inc. under US law, this is a consequence of the lawful data transfer to the jurisdiction of the United States of America. This possibility does not conflict with the guarantee of an essentially equivalent level of protection, as it would also be permissible under the European data protection regime according to Article 6(1)(c) GDPR (fulfillment of a legal obligation).

39. IV. The plaintiff also lacks a causal damage for a claim for damages under Article 82 GDPR. During their informal hearing, the plaintiff only stated that they had been informed about possible data protection violations concerning data transfer or the messenger by their legal representatives. Only after the court's indication did it become apparent that the present lawsuit does not relate to the scraping cases. Reference is made to the decision of the Higher Regional Court of Munich, case number 14 U 3359/23 e, order of 19 December 23, which states:
"The fear (even more clearly: English 'fear' and French 'crainte'), in which the CJEU sees non-material damage, can only be something that the injured party (a) personally experiences and (b) mentally burdens them, thus psychologically affecting them. If the trial court cannot recognize anything of the sort, the occurrence of non-material damage is not more likely than not in the sense of Section 287(1) ZPO."

40. This is the case here: the "great concern" initially indicated only after being prompted by their legal representative during the informal hearing (after initially stating that they "also find it bad") does not constitute non-material damage.

41. V. The plaintiff has no claims for information against the defendant under Article 15 GDPR.

42. 1. As far as information is requested regarding the data "from the monitoring of the FMessenger," to "present chat logs and disclose their internal evaluation," the chat logs can be downloaded by the plaintiff themselves. The information claim is thereby fulfilled, Section 362(1) BGB. The court does not understand what is meant by "internal evaluation"; a subsumption under one of the categories of Article 15(1) GDPR is not possible in this regard.

43. 2. As far as information is requested about which "Off-... Data" was collected at the plaintiff's IP address by the defendant and for what purpose it was stored and used, the defendant rightly refers to the self-information option it provides and, concerning the processing purposes, to a specific page in the help section. The information is thereby provided, Section 362(1) BGB.

44. 3. Regarding any data transferred to the NSA, the defendant can refuse to provide information because, on the one hand, there is a confidentiality obligation under US law, and on the other hand, it is inherently confidential information, Article 23 GDPR in conjunction with Section 29(1)(2) BDSG. The latter provision is not limited to professional secrecy holders, contrary to the plaintiff's view. It goes without saying that the information on whether and what information is provided to intelligence services is inherently confidential. Moreover, the information is not provided by the defendant but by ..., Inc., so the defendant would not be liable to provide information.

45. VI. The deletion requests under Article 17 GDPR (points 5(b) and (c) of the claims) are futile because they are conditional on the data processing being "indiscriminate." Even if one were to interpret this term as meaning "unnecessary" (Article 17(1)(a) GDPR), "without a legal basis" (Article 17(1)(b) GDPR), or "unlawful" (Article 17(1)(d) GDPR), these conditions, as outlined under points I and II, do not apply.

46. VII. All injunction claims fail due to the absence of a violation of the GDPR, as mentioned under points I to III. Regarding the "Off-... Data," it also adds that the user can manage the relevant settings. The plaintiff acts inconsistently if they leave the settings as they are and, on the other hand, demand that the defendant not process the data based on these settings.

47. VIII. In the absence of a principal claim, there is also no claim for procedural interest under Section 291 BGB.

C.

48. I. The cost decision is based on Section 91(1) ZPO.

49. II. The provisional enforceability is based on Section 709 ZPO.

50. III. The determination of the amount in dispute is based on Sections 39(1), 43(1), 48(1)(1) GKG, and 3 ZPO.

51. The court values the claims as follows:
Item / Value
1. 1,500
2. 1,500
3. a) 500
3. b) 500
4. a) 500
4. b) 500
4. c) 500
5. a) 500
5. b) 500
5. c) 500