OLG Frankfurt - 6 W 19/20

OLG Frankfurt - 6 W 19/20
Court:	OLG Frankfurt (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 6(1)(e) GDPR Article 79 GDPR
Decided:	19. 2. 2020
Published:	n/a
Parties:	Αnonymous
National Case Number:	6 W 19/20
European Case Law Identifier:	ECLI:DE:OLGHE:2020:0219.6W19.20.00
Appeal from:	LG Frankfurt (Regional Court)
Language:	German
Original Source:	Bürgerservice Hessenrecht (in DE)

The Higher Regional Court of Frankfurt (Oberlandesgericht Frankfurt) ruled that the sending of legal pleadings to the Bar Association for the purpose of examining possible conduct in breach of professional ethics - insofar as there is any processing under Article 4 No. 2 GDPR - is in any case permissible under Article 6(1)(e) GDPR.

English Summary

Facts

The parties are lawyers; they are engaged in expedited proceedings for injunctive relief under unfair competition law. On 29 October 2019, the defendant addressed a letter to the Board of Directors of the Bar Association of city 1 , enclosing copies of several writs of the applicant and pointing out the suspected unethical conduct. In order to defend himself against this action, the applicant has now submitted a motion to refrain from submitting his personal data to the Bar Association.

In January 2020, the regional court did not grant the application, also on the grounds that there could be no violation of the GDPR for the simple reason that the members of the bar association are bound to secrecy. This circumstance is now the subject of the present appeal.

Holding

The court ruled that the appeal was unsuccessful. On the one hand, courts are authorised and, also obliged to communicate personal data ex officio to public bodies for purposes other than those of the proceedings for which the data were collected; Section 25 German Data Protection Act forms the legal basis for this. This also includes requests for arrest as well as - on an equal footing with them - also requests for injunctions as a duty to notify the competent bar association. Article 6(1)(f) GDPR does not permit such transmissions pursuant to Article 6(4) conjunction with Article 23(1) GDPR.

Furthermore, the court ruled that request for an injunction is also unfounded, as there is no right to an injunction. The Regional Court had rightly rejected a claim for injunction under Section 3a of the Unfair Competition Act in conjunction with Article 79(1) GDPR. It remains to be seen whether infringements of the GDPR can be asserted by competitors at all, or whether the GDPR does not, rather, conclusively regulate the legal consequences of infringements. In any case, there is no business act within the meaning of § 2 I No. 1 Unfair Competition Act.

A claim for injunction by the applicant as a competitor directly from the GDPR is not discernible. The GDPR does not contain any basis for injunctive relief by competitors in the event of infringement.

Insofar as the transmission of the letters to the Bar Association by the defendant even constitutes "processing" of data within the meaning of Art. 4 No. 2 GDPR, this transmission would be lawful under Article 6(1)(e) GDPR. The objectives of the Federal Lawyers' Act, in particular those of sanctioning the incorrect conduct of lawyers, are in the public interest. Moreover, the transfer would also be permissible under Article 6(1)(f) GDPR, since there are legitimate interests for the transfer and it is not apparent that the interests of the applicant, in particular his fundamental rights, outweigh the transfer. The court was of the opinion that the intensity of intervention should be regarded as low; the written submissions are letters written by the applicant and intended to be made available to third parties. It is also in no way apparent that the writs would contain information that is particularly worthy of protection.

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English Machine Translation of the Decision

The decision below is a machine translation of the original. Please refer to the German original for more details.

Court: OLG Frankfurt 6th Civil Senate
Decision date: 19.02.2020
File number: 6 W 19/20
ECLI: ECLI:DE:OLGHE:2020:0219.6W19.20.00
Document type: Decision
Source:	Hesse
Standards: § 2 Para. 1 No. 1 UWG, § 79 DSGVO, § 823 Para. 1 BGB, § 1004 Para. 1 BGB, § 2 Para. 1 No. 3 UWG

Lawfulness of the sending of lawyers' letters to the Bar Association

Guiding principle
1. there is a lack of the legal interest in bringing proceedings necessary for an action for an injunction, as well as a lack of the existence of a commercial act, where the contested act consists in the passing on of lawyers' pleadings to the Bar Association for the purpose of examining possible conduct contrary to professional standards The principles on privileged statements are applicable accordingly.

2) The sending of legal pleadings to the Bar Association for the purpose of examining possible conduct in breach of professional ethics is - insofar as data is processed at all pursuant to Art. 4 No. 2 DSGVO - in any case permissible pursuant to Art. 6 para. 1 (e) DSGVO.

Note
The decision is not contestable.

Hide process stepHide process step
For the record LG Frankfurt am Main, 6 January 2020, 2-6 O 532/19, Decision
Tenor
1.) The appeal is dismissed.

2.) The applicant shall bear the costs of the appeal proceedings.

3.) The appeal value is set at € 20,000.
Reasons
I.

The parties are lawyers; they are engaged in summary proceedings for injunctive relief under unfair competition law.

On 29 October 2019, the defendant addressed a letter to the Board of Directors of the City1 Bar Association, enclosing copies of several writs of the applicant and pointing out the suspected unethical conduct. In particular, he referred to § 43 BRAO and to the requirement of objectivity in § 43a, Subsection 3 BRAO. The background was a warning to the applicant from OWiG and subsequent correspondence between the parties.

The Board of the Bar Association issued a reprimand to the applicant on the grounds that the applicant had warned the defendant in his fax letter of 19 October 2019 in response to the defendant's letter of "objectivity" and thus accused him of a breach of the obligation to objectivity pursuant to § 43a para. 3 BRAO.

The applicant claims that the Court should

The defendant is forbidden to use the personal data of the applicant (name, private address, facts, legal statements, allegations etc.) including business secrets (warning letter, claim for contractual penalty, amount in dispute, determination of fees), which are contained in the warning letter of 21 October 2019, to the extent that the defendant avoids a fine of up to € 250,000, or alternatively imprisonment or detention for up to 6 months, to be determined by the court for each case of violation of the obligation to cease and desist. December 2018 together with Annex AS 1 (pre-formulated cease-and-desist declaration) and Annex AS 2 (advertising e-mail to the applicant's private e-mail inbox), in the applicant's written statement of 5 October 2019 (in addition to Annex K1-K6) without the prior express consent of the applicant or without disclosing the predominant legitimate interests of the defendant or his client by transmission, as was done on 29 October 2019 and 1 November 2019 to the Bar Association Stadt1.

The Regional Court rejected the issue of a temporary injunction by order of 6.1.2020. In its reasoning, it stated that there was no right to injunctive relief under the Act against Unfair Competition (UWG) because there was no commercial act. By his letter to the Bar Association, the defendant had not promoted the sale or purchase of goods or services. The appeal to the Bar Association was ultimately part of a lawyer's internal grant of legal protection. A violation of the DSGVO was out of the question, if only because the employees of the bar association were obliged to maintain secrecy under § 76 BRAO.

The applicant's appeal is directed against this, with which he is pursuing his first-instance application for an injunction.

II.

The admissible appeal is unsuccessful on the merits. The Regional Court rightly assumed that the applicant is not entitled to a right of disposal. Neither from § 3 UWG nor from § 79 DSGVO or §§ 823 I, 1004 I BGB can the applicant demand the requested omission.

1.) Insofar as the applicant alleges in the complaint a violation of his fundamental right to a statutory judge under Article 101 I 2 of the Basic Law due to a change in the composition of the court, it is not necessary to decide whether this would be relevant to the decision at all in this case, since a referral of the case back to the court in summary proceedings is fundamentally out of the question.

Incidentally, such an infringement is also far from being the case. Insofar as the applicant points out that, in contrast to the Chamber's indication on 19 December 2019, Judge A (at that time still a member of the 6th Civil Chamber) no longer participated in the decision of 6 January 2020 and two members of the 3rd Civil Chamber would have participated, the Regional Court rightly referred to the - court known - allocation of duties of the Regional Court, according to which the members of the 3rd and 6th Civil Chambers represent each other. Therefore, on 06.01.2020 the members of the 3rd Civil Chamber VRLG C and RinLG D participated in addition to the member of the 6th Civil Chamber Judge B.

By the way, during the school holidays in Hesse the absences of several chamber members are not uncommon, but rather the rule.

It should only be mentioned in passing that the Chamber's obvious reference to the Board of the Bar Association regarding the pendency of the injunction proceedings cannot be seen as an indication of a "manipulated composition" of the Chamber. Pursuant to § 1 of the Order on Notifications in Civil Matters (MIZI), in proceedings before the civil courts in dispute, the courts are authorised under §§ 12, 13.1, §§ 15 to 17 of the ECGVG to notify personal data ex officio to public bodies for purposes other than those of the proceedings for which the data were collected, and are also obliged to do so in accordance with the MIZI; § 25 of the BDSG forms the legal basis for this. In the MIZI, Chapter XXIII No. 2 Para. 1 e) also lists arrest requests and - on an equal footing with them - also requests for orders as a duty to notify the competent bar association. Art. 6 IV f) DSGVO does not permit such transmissions pursuant to Art. 6 IV in conjunction with Art. 23 I DSGVO (Gola DSGVO/Schulz, 2nd edition 2018, DSGVO Art. 6 marginals 229, 230).

2.) The application for disposal has already proved to be inadmissible. It lacks the necessary interest in legal redress, since the statement of the defendant is to be regarded as a privileged statement.

a) Pursuant to sec. 8 I UWG (or sec. 823 I BGB), there is in principle no right to the omission of allegations (e.g. defamatory statements) by a party or its attorney, a witness or expert in court proceedings if they - irrespective of their truthfulness - serve the purpose of prosecution in proceedings (BGH GRUR 1998, 587, 589 - Bilanzanalyse Pro 7; BGH GRUR 2010, 253 para. 14 - fish can lids; BGH GRUR 2013, 305 marginal 14 - fee reduction; BGH GRUR 2013, 647 marginal 12 - decision on the award of a contract in abuse of law; Teplitzky/Bacher chapter 19 marginal 16 et seq.) This would restrict the freedom of expression of the parties to the proceedings. The unhindered conduct of state-regulated proceedings must not be impeded more than absolutely necessary. The parties to the proceedings must be able to state what they consider necessary for prosecution or defence, unless mandatory legal limits conflict with this (BGH GRUR 2013, 305 marginal 16 - fee reduction; BGH GRUR 2013, 647 marginal 14 - decision on the award of surcharges in abuse of law). Such actions for injunctive relief or revocation already lack the procedural requirement for legal protection, so that they must be dismissed as inadmissible (BGH GRUR 1987, 568, 56). Privileged are not only statements made in court, but also - if the interests are corresponding - statements in administrative proceedings (BGH GRUR 1998, 587, 589 - Bilanzanalyse Pro 7). For example, the submission of a broadcasting company to the state media authorities, which requires intervention against a competitor also in the interest of maintaining the diversity of opinion, cannot be prevented by a claim for defence under competition law (BGH loc. cit.). These considerations are also important in the proceedings before the bar association, which are similar to administrative proceedings. In this respect, the bar associations are dependent on complaints made to them by interested parties in order to fulfil their tasks. These include not least competitors who cannot be denied a legitimate interest in pursuing possible abuses, even if - as in the case of the dispute - they can thereby promote their own competition (see on this point BGH loc. cit. - Bilanzanalyse Pro 7).
In the opinion of the Senate, this established case-law applies to procedural acts such as the sending of the defendant's letters to the Bar Association. In this respect, proceedings before the Bar Association must be compared with administrative proceedings; this is already shown by § 32 BRAO, which orders the application of the VvVfG for administrative proceedings under the BRAO. Admittedly, since the respondent would not be involved in any professional proceedings against the applicant, this would not restrict the respondent's freedom of expression. However, the functionality of the proceedings under the law of lawyers, to which the defendant is obliged as a member of the Bar Association, does not require that the filing of a complaint and the transmission of documents be subject to judicial review. Similarly to the assertion of facts, the administrative procedure should in this case also be the place where the legal questions at issue and the factual questions relating thereto are clarified.

b) Even a weighing of interests against the applicant's interests does not lead to a different result: the privileged treatment of procedural statements is based on a weighing of interests. On the one hand, there is the debtor's interest in an unhindered presentation in the proceedings in question, as well as the public interest in the proper functioning of the administration of justice, which includes both parties as organs of the administration of justice. As a rule, this interest takes precedence over the interests of the competitor, who considers the statement in question to be an infringement of competition and therefore insists on the omission of the statement (Köhler/Bornkamm/Feddersen/Bornkamm, 38th ed. 2020, UWG § 8 marginals 1.147, 1.148). The recognition of defence claims would jeopardise the proper pursuit or defence of rights in pending civil or administrative proceedings. Whether the assertions in question are true and substantial must always be examined in the proceedings in which these statements are to be made.

The interest of the party concerned therefore only prevails if the allegations are deliberately false or carelessly made and the administrative proceedings initiated on the basis of the submission do not offer any guarantee that the allegations made will be clarified (BGH GRUR 1998, 587, 590 - Bilanzanalyse Pro 7; BGH GRUR 2010, 253 margin no. 17 - Fischdosendosendeckel; BGH GRUR 2013, 305 margin no. 15 f. - fee reduction). There is no doubt that the proceedings before the bar association offer sufficient guarantee for the clarification of the charges raised. It is solely up to the applicant to decide that he will not use the right to be heard and not participate in the proceedings. Nor can the Senate recognise that the allegations were deliberately false or that the communication to the Bar Association was manifestly without substance; the mere fact that the Bar Association subsequently actually issued a reprimand is in itself a sign of the defendant's admissibility of his action and rules out the possibility that his appeal was without substance. Whether the defendant's titling of the applicant's statements as "hysterical" and the accusation of a "monkey dance" violates the requirement of objectivity in § 43a III 2 BRAO does not have to be assessed by the Senate. It would therefore have been up to the applicant to explain here why, by way of exception, no privileged statement should have been made. The same applies to the question of the violation of § 43 BRAO by self-mandating as well as an overcharging due to the demand for fees from a value of 6,600 € due to spam mails in the private sector.

3.) In addition, the application for an injunction is also unfounded, as there is no right of injunction. The applicant is not entitled to the requested injunction from any legal point of view.

a) The Regional Court rightly rejected a claim for injunction under § 3a UWG in conjunction with 79 I DSGVO. In this context, it may be left open whether violations of the DSGVO can be asserted by competitors at all, or whether the DSGVO does not instead conclusively regulate the legal consequences of violations (see for the overview Ohly, GRUR 2019, 686; Uebele, GRUR 2019, 694; OLG Hamburg, GRUR 2019, 86; OLG Naumburg, GRUR-RR 2020, 79). In any event, there is no business act within the meaning of Sec. 2 I No. 1 UWG.
Under Paragraph 2 I(1) of the UWG, a commercial act is any conduct by a person for the benefit of his own undertaking or that of another undertaking which is objectively connected with the promotion of the sale or purchase of goods or services or with the conclusion or performance of a contract for goods or services before, during or after a transaction.

An "objective connection" (and usually already an act in favour of one's own or another's undertaking) is therefore lacking if the act may actually have an effect on the business decisions of consumers and other market participants, but primarily serves objectives other than the promotion of sales or purchase (cf. recital 7 p. 2 of the UCPD). For statements made in legally ordered proceedings it is normally not to be assumed that there is a sales promotion connection. Reference is made in this respect to the above remarks on admissibility.

The same applies to possible further claims based on fairness law.

b) No claim for injunctive relief by the applicant as a competitor directly under the DSGVO is discernible. The DSGVO does not contain any basis for claims for injunctive relief by competitors in the event of infringement.

c) Insofar as the applicant does not claim injunctive relief as a competitor but as an "infringed party" within the meaning of the DSGVO and on the basis of Art. 79 DSGVO, it is not necessary to ask whether there is any local jurisdiction at all for the defendant against the Cologne-based defendant on the basis of Art. 79 II DSGVO and whether there is any substantive jurisdiction at all under § 71 I GVG on the basis of the general rules applicable here.

Insofar as the transmission of the letters to the Bar Association by the defendant even involved the "processing" of data within the meaning of Article 4 no. 2 DSGVO, this transmission would be lawful under Article 6 I e) DSGVO. The objectives of the BRAO, in particular also those of sanctioning lawyers' erroneous conduct, are in the public interest. Moreover, the transfer would also be permissible under Article 6 I f) DSGVO, since there are legitimate interests for the transfer and it is not apparent that the interests of the applicant, in particular his fundamental rights, prevail. The intensity of the intervention must be regarded as low; the writs are letters written by the applicant which were intended to be made available to third parties. The applicant himself also attached them to the statement of claim in the proceedings before the Regional Court Stadt2 (there Annexes K 15 and K 16). It is also in no way apparent that the writs would contain information that is particularly worthy of protection.

d) Insofar as the applicant refers to §§ 823 I, 1004 BGB in conjunction with Article 2 I, 1 I GG, this is obviously not relevant. It is therefore already questionable whether the defendant's general right of personality is affected at all, given the professional nature of his lawyer's written statement. In any case, however, in the overall weighing of the matter the defendant's action would not be unlawful. Reference can be made to the above statements.

4.) The decision on costs follows from § 97 ZPO.