OVG Lüneburg - 2 ME 426/20

OVG Lüneburg - 2 ME 426/20
Court:	OVG Lüneburg (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 9(2)(e) GDPR
Decided:	09.11.2020
Published:
Parties:
National Case Number/Name:	2 ME 426/20
European Case Law Identifier:	ECLI:DE:OVGNI:2020:1109.2ME426.20.00
Appeal from:	VG Osnabrück 6 B 73/20
Appeal to:
Original Language(s):	German
Original Source:	Niedersächsisches Landesjustizportal (in German)
Initial Contributor:	Agnieszka Rapcewicz

The Superior Administrative Court of Lüneburg (OVG Lüneburg) found that Article 9(2)(e) GDPR allows for the processing of personal data that the data subject has expressly made public. Specifically, the Court held that the General Students' Committee (AStA) is authorised to critically examine, in public, any views of a university employee made public by said employee.

English Summary

Facts

The complainant, as a private individual, took part in a citizens' movement in his city which, among other things, demands an immediate end to all coronavirus-related activities. The complainant was a speaker at the meetings of the citizens' movement. In addition, he made numerous contributions to the citizens' movement's chat group. The chat group itself was critical of the topics of masks, vaccination, 5G radiation, and the detection and threat of the Sars-CoV2 virus. The applicant also took part in a demonstration on 1 August 2020 in Berlin under the slogan 'End of the pandemic - Freedom Day'. In this context, he appeared on the same day as a guest on a talk show broadcast on YouTube, mentioning his employer (the university).

As an answer to the above activities of the complainant, the General Students' Committee (AStA) published on its webpage an article criticising the behaivour and opinion of the complainant (an employee of the university) to the coronavirus pandemic. The article points out, among other things, that there is no place at the university for a person who is hostile to science and publicly speaks out against all scientific knowledge about the existing pandemic and denies its threat, and thus, at least indirectly and by association, supports certain nationalistic and rightwing views and political parties, including the denial of the Holocaust.

The complainant demanded that the publication of the above statements be removed and not published again. He said he had never claimed to support nationalistic and rightwing views and political parties, including the denial of the Holocaust. The General Students' Committee (AStA) did not act in accordance with the above request, so the applicant filed a complaint with the administrative court.

Before considering the complaint, the defendant slightly changed the content of the information provided in the article. The Administrative Court Osnabrück dismissed the complaint and found that there was no unlawful infringement of the applicant's personal rights or of the provisions on personal data protection. The complainant filed an appeal to the Superior Administrative Court Lüneburg.

Dispute

Did the General Students' Committee (AStA) have the right to publicly criticise its employee's actions? Has there been defamation of the complainant or a breach of data protection legislation?

Holding

The Court found the appeal to be unfounded and pointed out that the General Students' Committee (AStA) is authorised to critically examine in public any views of a university employee which are assessed as conspiracy-theoretical - in this case on the coronavirus pandemic. This was based on § 20 para 1 sentence 4 to 6 NHG. But also Article 9(2)(e) GDPR woud not prevent the General Students' Committee (AStA) from publishing their article, at least insofar as the university employee made public statements with reference to his or her activities at the university itself.

Comment

The Court pointed out that the applicant's behaviour is undoubtedly covered by freedom of expression in accordance with the Constitution. These fundamental rights, however, do not prevent the applicant from being criticised by student bodies and discussed in public. Anyone seeking publicity with controversial positions regarding their own membership of a university must, for their part, face criticism from the university committees set up for this purpose by law.

In addition to stating that the allegations of the defamatory nature of the statements contained in the article are unfounded, the court found that there is no infringement of the provisions on personal data protection either. The applicant was unable to demonstrate that the processing of his personal data by the defendants may have been unlawful. The reason would have been, in particular, to take a closer look at Article 9(2)(e) GDPR. This provision excludes the processing of personal data, which the data subject has expressly made public, from the basic prohibition of processing under Article 9(1) GDPR. The Court stated that Article 9(2)(e) GDPR shall be for the benefit of the defendants. They shall use only information which the applicant has himself distributed in publicly available sources. GDPR regulates the protection of personal data. It does not protect the fact that data made public by the data subject himself and of his own free will are publicly discussed and used as a basis for drawing conclusions from the evaluation.

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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.

PROCEDURE
VG Osnabrück, 9 October 2020, Ref: 6 B 73/20, decision


TENOR
The applicant's appeal against the order of the Administrative Court of Osnabrück - 6th Chamber - of 9 October 2020 is dismissed.

The applicant is ordered to pay the costs of the appeal proceedings.

The value of the subject matter of the dispute is set at EUR 10 000 for the appeal procedure.

REASONS
I.

1
The applicant objects to an internet contribution on the homepage of the AStA of the University A-City, which critically examines his attitude to the Corona pandemic.

2
The applicant is head of the G. of the University and the Hochschule A-Stadt. As a private person, he is committed to the citizens' movement A-Stadt, which, according to his own account, is "an association of citizens* with their own opinions without party-political affiliation" and which, among other things, demands the immediate end of all corona measures. At meetings of the citizens' movement, the applicant appeared as a speaker; in addition, he posted numerous contributions in the telegram group of the citizens' movement, which critically deal with the topics of masks, vaccinations, 5G radiation as well as the detection and the danger of the Sars-CoV2 virus, among others. The applicant also took part in the demonstration on 1 August 2020 in Berlin under the motto "The end of the pandemic - Freedom Day". In this context, he appeared on the same day, naming his employer, as a guest on a talk show broadcast on YouTube.

3
On 1 September 2020, the General Students' Committee of the University of A-City took these activities as an opportunity for the student body, the respondent to 1, to publish a critical internet article about the applicant on its homepage. The article entitled "Corona Leugner & Conspiracy Ideologies at University and College", which continues to be publicly accessible, states that, according to the facts of the case, among other things

4
"A person who, according to his own statements made in the telegram group of the citizens' movement, sympathises with the AfD and thus supports a völkisch nationalist party - allegedly of course only because of coincidental similarities in the chosen conspiracy theory - has no place in a scientific establishment. A person who is hostile to science and publicly speaks out against all scientific findings on the existing pandemic and denies its danger; someone who roams through Berlin and A-City together with esoterics, right-wing extremists, anti-Semitics and Holocaust deniers belongs neither to a university nor to a college. Someone who obviously spreads or at least accepts anti-Semitic, right-wing and conspiracy ideological ideas can by no means possess the skills necessary to mediate between science and society".

5
This statement prompted the applicant to call upon the defendant (1) and the defendant (2), the financial officer of the AStA, to submit a declaration of cease and desist and a declaration of commitment subject to penalty by means of a lawyer's letter dated 10 September 2020. The defendants rejected this request.

6
On 18 September 2020, the applicant filed an application with the Administrative Court for a temporary injunction with the aim of prohibiting the defendants from repeating the following statements

7
1) "A person who, according to his own statement made in the telegram group of the citizens' movement, sympathises with the AfD and thus supports a national party of the people...",

8
2 "Someone who travels through Berlin and A-City together with esoterics, right-wing extremists, anti-Semitics and Holocaust deniers...",

9
3) "Someone who is obviously spreading, or at least accepting, anti-Semitic, right-wing and conspiracy ideological ideas

10
The defendants opposed this, but amended the first sentence of the contribution as follows under 21 September 2020

11
"A person who, according to his own statements made in the telegram group of the Citizens' Movement, sympathises with positions of the AfD and believes that the AfD is "the only German party" that does what he feels "as an absolute duty" and concludes with the words "Thank you AFD", thus thanking a völkisch nationalist party - allegedly of course only because of coincidental similarities in the chosen conspiracy theory - has no place in a scientific establishment.

12
The Administrative Court rejected the application by the challenged order of 9 October 2020. In any event, there was no claim for an injunction - in this case in the form of a public-law right of injunction - because there was no unlawful violation of the applicant's general right of personality. The defendants had neither asserted untrue facts nor made value judgments, they had presented themselves as inadmissible formal insults or abusive criticism. To that extent, the statements made by the applicant had to be accepted. Nor did data protection provisions constitute a basis for the claim. The applicant objects to this by lodging the complaint.

II.

13
The admissible complaint is unsuccessful.

14
The reasons set out above, which the Senate is limited to examining under Paragraph 146(4), sixth sentence, of the VwGO, do not justify a change in the administrative court's decision. The fundamental reasons for the decision, in particular the assumption that the right to make an order required under § 123.1 VwGO is lacking, do not effectively call into question the appeal.

15
(1) Whether the legal principles derived from the case-law of the Federal Constitutional Court on freedom of expression under Article 5(1), first sentence, of the Basic Law, according to which the Administrative Court, following a decision of the Higher Administrative Court for the Land of North Rhine-Westphalia (Oberverwaltungsgericht für das Land Nordrhein-Westfalen) (judgment of 23 March 2003 in Case C-243/99), is to be regarded as having been complied with is not clear.4.1999 - 21 A 490/97 -, juris marg. no. 19) between admissible and inadmissible statements made by the defendants authorised to make statements in matters of higher education policy under Article 20(1) sentences 4 to 6 of the Higher Education Act, the Senate leaves open the question of whether this is the case for two independent reasons. Firstly, the applicant has not challenged these principles with his complaint, which alone is relevant under section 146(4) sentence 6 VwGO. Secondly, the challenged statements of the respondent in 1. prove to be correct even if a stricter standard is applied, according to which an official statement must firstly remain within the scope of competence of the party making the statement and secondly be subject to the requirement of objectivity (see BVerwG, decision of 11 November 2010 - 7 B 54.10 -, juris para. 14; judgment of 13.9.2017 - 10 C 6.16 -, jurisprudence, marginal no. 16 et seq.

16
2 The applicant submits first of all that the first statement ("A person who, according to his own statement made in the telegram group of the citizens' movement, sympathises with the AfD and thus supports a national party of the people...") is, contrary to the opinion of the Administrative Court, not an expression of opinion but an untrue assertion of fact. This is not true - irrespective of the fact that a claim for injunction with regard to the original statement does not exist, even in the absence of a continuing act of infringement, due to the much clearer differentiation by the defendants. As the Administrative Court has convincingly demonstrated, the statement that the applicant sympathises with the AfD and thus supports a national party of a nation-state is an evaluative statement. Its core of facts - the support for the position of this party on compulsory masks at schools, expressed by the applicant in a telegram group and concluded with the words "In this case: Thank you, AfD" - is demonstrably correct. From this, the respondent deduces that the applicant sympathises with the AfD, i.e. shows affection or support for this party. This is not defamatory, disparaging or no longer appreciating the core facts in an appropriate and justifiable manner (see BVerwG, decision of 11 November 2010 - 7 B 54.10 -, juris para. 14). Insofar as the applicant argues that by saying "in this case" he had incidentally distanced himself from the political content of the AfD, this conclusion is by no means compelling. On the contrary, the very fact that the applicant not only emphasises the position that compulsory masks should be rejected in schools, but also emphasises the position of the AfD on this and mentions the party by name and praises it, means that the defendants' assessment appears to be justifiable. Not sufficiently explained in terms of § 146.4 sentence 3 VwGO are concerns with regard to the defendants' assessment that the AfD is nationally oriented in a völkisch way.

17
3 The applicant challenges the finding of the Administrative Court that the second statement ("Someone who travels through Berlin and A-City together with esotericists, right-wing extremists, anti-Semitic persons and Holocaust deniers") is, at least in essence, a true statement of fact. The Administrative Court has stated in detail and with concrete evidence that the applicant appeared at rallies of the A-Stadt citizens' movement. It further stated that members of that movement were appending crude conspiracy theories - contrary to the applicant's view, there was no need for a broader definition of that generally accepted and sufficiently clear-cut term - and disseminating them on the internet. In addition, the Court referred to the applicant's participation in the rally in Berlin on 1 August 2020 and examined the circle of participants at that event in more detail. Against this background, the objection that the Administrative Court overlooked that the alleged fact must be proven to be true is beside the point. On the contrary, the Administrative Court has convincingly convinced itself of the truth of the core of the facts within the scope of its duty of official investigation; the Senate joins in this statement pursuant to § 122 (2) sentence 3 VwGO to avoid repetition.

18
Without success, the applicant submits that the telegram group of the citizens' movement also shares information that is not conspiracy theoretical. This may be true, but it does not change the fact that - the DVD submitted by the defendants provides a large amount of additional evidence - conspiracy theories or positions that could be described as "esoteric" are attached to a considerable extent. In this respect, the applicant's telegram contributions on the "causation of corona" by 5G radiation (forwarded mail of 23.7.2020) and on vaccines disguised as corona test smears (forwarded mail of 25.7.2020) speak for themselves. The defendants have not claimed that all members of the citizens' movement share such positions.

19
Alongside the substance of the case are the applicant's abstract considerations concerning the legal significance of the "sharing" of third party information. The fact that conspiracy-theoretical ideas occupy a large part of the telegram group of the citizens' movement was decisive for the assessment of the Administrative Court. That this could happen in a distancing way is neither demonstrated nor evident.

20
The fact that members of the telegram group of the citizens' movement, which acted as organiser and called for the demonstrations in A-city, took part in the demonstrations is obvious in a way that makes further explanations by the Administrative Court unnecessary. Moreover, the applicant does not state in a manner sufficient to satisfy § 146.4 sentence 3 VwGO that this could have been otherwise.

21
With regard to the demonstration in Berlin on 1 August 2020, the article quoted by the Administrative Court on the ARD website (https://www.tagesschau.de/inland/corona-demo-polizei-101.html, last accessed on 5 November 2020) clearly shows that right-wing extremists marched there. The carrying of Reich war flags and the wearing of T-shirts with relevant imprints casually suggests a right-wing extremist attitude, which is regularly accompanied by denial of the Holocaust and anti-Semitic attitudes. Whether the applicant has noticed this is irrelevant; the Administrative Court rightly held that the defendants had not made an allegation to that effect.

22
It is justifiable that the defendant's statement, which is probably connected with his statement and which he understood to be so after his statement in the appeal proceedings, states that one has a responsibility for whose society one is entering. Even before the demonstration in Berlin, there was a broad discussion about the fact that the protests against the corona-induced restrictions on freedom were accompanied, supported and possibly also instrumentalised by right-wing extremists. In a democratic constitutional state, this need not prevent anyone from attending such a demonstration nonetheless. At the same time, however, no one can claim that this is not publicly discussed by third parties.

23
4) The attacks on the classification of the third statement ("Someone who is obviously spreading or at least accepting anti-Semitic, right-wing and conspiracy ideological ideas...") as a valuation based on a core of facts are also mistaken. The Administrative Court pointed out that the applicant had advertised in the Telegram Group for an "Express Newspaper", the lead of which is headed by the words "Corona hysteria without evidence". The court also referred to the splitting of a contribution on the effects of 5G radiation, which takes up conspiracy myths of the QAnon movement. The fact that the applicant disseminated that content, that is to say, drew the attention of third parties, is an obvious fact. There is no other way to characterise the reproduction and linking of the contributions in own posts.

24
According to the Administrative Court, the defendants' assessment that the applicant had at least accepted these statements is based on this. The applicant submits that that conclusion is inadmissible because he did not make any observations to that effect. With regard to the "Express-Zeitung", this is manifestly not true; the applicant advertised for the newspaper with the words: "Absolutely watch and disseminate", thereby expressing a positive attitude. Moreover, the very selection of the articles disseminated shows that the applicant considers them to be relevant and worth reading.

25
To the extent that the applicant further claims that the Administrative Court had to prove to him an anti-Semitic attitude and his own postings with right-wing and conspiracy ideological content, this is not true. The defendants have not made any such allegations.

26
5) The applicant also does not effectively question the assessment of the Administrative Court that the statements objected to are not to be considered as defamatory criticism due to their material relevance. It is true that conspiracy theorists, right-wing extremists, Holocaust deniers and anti-Semites are ostracised in society, albeit to varying degrees. Against this background, it is objectively all the more justified that the respondent to 1. on the basis of its mandate under § 20.1 NHG, which follows from § 20.1 NHG, takes a critical look at the fact that an employee of a public university, i.e. an academic institution, at least in one case, consciously or unconsciously enters the society of such a group of people with reference to his or her activities and spreads the positions of such people. Nor does such a critical statement exceed the framework set by the requirement of objectivity. The applicant's conduct is without doubt covered by the freedom of opinion under Article 5 (1) sentence 1 of the Basic Law and the freedom of assembly under Article 8 (1) of the Basic Law. However, these fundamental rights do not protect him or her from his or her conduct being viewed critically by the student bodies and publicly discussed. Anyone who seeks publicity with controversial positions with reference to his or her own affiliation to a university must, for his or her part, face criticism from the university committees appointed for this purpose under the statutory regulations.

27
6. data protection legislation does not help the complaint to succeed either. In so far as the applicant relies on Article 17 in conjunction with Article 9(1) of the Basic Data Protection Regulation (DSGVO), which is applicable here (only) by virtue of Paragraph 2(2)(c) of the NDSG, it fails, contrary to Paragraph 146(4), third sentence, of the VwGO, to substantiate that the data processing by the defendants could have been unlawful. There would have been grounds, in particular, for a more detailed examination of Article 9(2)(e) of the DSGVO. This provision exempts the processing of personal data which the data subject has manifestly made public from the fundamental prohibition on processing under Article 9(1) DPA.

28
Irrespective of the lack of explanation, Art. 9 para. 2 lit. e) DSGVO intervenes in favour of the defendants. They only use information which the applicant has itself disseminated in generally accessible sources. Insofar as the applicant merely states that he has not accused himself of sympathising with the AfD, of associating with esoterics, right-wing extremists and anti-Semitic persons or even Holocaust deniers, or of disseminating or at least accepting obviously anti-Semitic, right-wing and conspiracy ideological ideas, this does not go far enough. The basic data protection regulation regulates the protection of personal data; it does not therefore protect the fact that data made public by the data subject himself or herself and of his or her own free will are publicly discussed and used as the basis for evaluative conclusions. In view of this, the question of whether - as the defendants submit - Article 17(3)(a) of the DPA also precludes the claim being asserted is irrelevant.

29
7 Finally, in so far as the applicant raises a 'procedural complaint' alleging that he was not aware of the DVD sent by the defendants as part of the administrative procedure before the decision of the administrative court, it can be left open whether there was an infringement of the right to be heard. In the appeal proceedings, the Senate granted access to the file, thus giving the applicant the opportunity to present the content of the DVD.

30
8) Against this background, the other questions - in particular the existence of a ground for an order and the highly questionable passive legitimacy of the applicant under 2) - are no longer relevant.

31
The decision on costs is based on § 154 (2) VwGO.

32
The determination of the amount in dispute follows from Sections 53 (2) No. 1, 52 (1) of the Basic Law; just like the Administrative Court, the Senate also follows the applicant's proposal, which does justice to the importance of the case.

33
This decision is unappealable (§§ 152 (1) VwGO, 68 (1) sentence 5, 66 (3) sentence 3 GKG).