VG Schwerin - 1 A 1343/19 SN

VG Schwerin - 1 A 1343/19 SN
Court:	VG Schwerin (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 4(1) GDPR Article 15(1) GDPR Article 15(3) GDPR Article 15(4) GDPR Article 58(2) GDPR § 2 UrhG § 17 UrhG § 19a UrhG § 31 UrhG
Decided:	29.04.2021
Published:
Parties:
National Case Number/Name:	1 A 1343/19 SN
European Case Law Identifier:	ECLI:DE:VGSCHWE:2021:0429.1A1343.19.00
Appeal from:
Appeal to:
Original Language(s):	German
Original Source:	landesrecht-mv.de (in German)
Initial Contributor:	Lejla Rizvanovik

A regional administrative court ruled that a data subject is entitled to a copy of the expert report on his building, even though the report was commissioned by a neighbour. The provision of a copy is not precluded by recital 62(1) GDPR, copyright law, or the prohibition of abusive conduct.

English Summary

Facts

The plaintiff planned the construction of a nursing home. For this purpose, he commissioned an expert office to prepare an expert opinion on the structural and functional condition of the neighbouring building with regard to existing damage. This building is owned by the data subject.

The data subject requested the plaintiff to provide a copy of the expert report. The plaintiff refused to do so. The data subject then requested the assistance of the competent DPA. The DPA decided that the plaintiff was obliged to provide a copy of the expert report under Article 15(3) GDPR.

The present lawsuit is directed against this decision.

Holding

The court ruled that the data subject had a claim against the plaintiff under Article 15(3) GDPR.

Expert Opinion as Personal Data Within the Meaning of Article 4(1) GDPR

The Administrative Court of Schwerin (VG Schwerin) first finds that the expert opinion is personal data under Article 4(1) GDPR.

For this purpose, it distinguishes between factual data and personal data. With reference to ECJ case law, the court explains that the delimitation is to be based on a context-related approach. Accordingly, the personal reference could result from an element of content, purpose or result, a combination of those elements or the realisation of all elements.

The content element is realized when direct or indirect information about a person is given. Indirect reference to a person is assumed if statements are made about relationships, such as a statement about the value of a property. The purpose element is given if the information makes it possible to assess, treat or influence a person. This is particularly assumed when various pieces of information are linked, for example, to recognise patterns and to create corresponding analyses based on which the interaction with a person is taking place. The result element is realised if is the possibility that the information can affect the rights and interests of a specific person, for example in the case of information about the economic use and exploitation of real estate.

In the court's opinion, all elements were fulfilled. By stating the address in the expert opinion, the data subject was clearly identifiable (geo-referencing), so that the content element was given. The expert report had been prepared for the purpose of recording property. This should enable later conclusions to be drawn about changes to a specific property condition or the property and ownership relationships at specific times of assessment by documenting connecting facts for a before-and-after view. The property was appraised precisely with regard to later disputes with the beneficiary. In this respect, the purpose and result elements were also fulfilled.

Recital 62(1) GDPR Does Not Preclude the Claim to a Copy

The court found that recital 62(1) GDPR did not preclude the data subject’s claim. According to this, a right to information does not exists if the data subject already has the information. However, according to the court, this presupposes that the data subject is aware of the desired information in the specific form requested.

This was not the case here. It is true that the data subject as the owner of the building in question can examine its condition by himself anytime. However, this was irrelevant. The summaries of the photos and descriptions in the expert report constitute an independent processing of data. The data subject would not have access to this concrete information without the expert opinion.

No Conflicting Copyright of the Expert

The court then ruled that the expert's copyright did not preclude the right of access under Article 15(4) GDPR.

According to this provision, the receipt of a copy must not adversely affect the rights and freedoms of others. For further clarification, the court refers to recital 63(5) of the GDPR. According to this, intellectual property rights may not be adversely affected by rights of access. However, recital 63(6) of the GDPR requires a comprehensive balancing with the fundamental rights and freedoms of third parties. The rights and freedoms of other persons must not lead to the data subject being denied information.

In the opinion of the court, copyrights were not opposed in the present case for two reasons:

Firstly, the court already doubts whether an expert opinion is worthy of copyright protection at all. § 2 of the German Copyright Act (UrhG), which is relevant in this respect, protects scientific linguistic works only to a limited extent, namely in the form of formulations that are an expression of an individual (linguistic) creation as opposed to technical language.

Secondly, the court states that even if copyright protection is assumed, there is no copyright conflicting.

On the one hand, the plaintiff, who has the burden of proof, did not prove in the specific case that a right of use or utilization had been agreed between the expert and the plaintiff.

On the other hand, there were no statutory provisions of the UrhG (§ 15(2)(2), § 19a UrhG; § 15(1)(2), § 17 UrhG) that prevented the provision of the work. The court subsequently examined these in more detail, which, however, will not be examined in more detail here due to the lack of relevance to data protection. In particular, the court stated that the expert opinion cannot fulfil the purpose of preserving evidence if it is not disclosed equally between the parties directly affected (plaintiff and data subject). The expert opinion is intended to establish the condition of the building and any existing damage prior to the commencement of the plaintiff's construction work by an independent third party, so that uniform and undisputed connecting facts can be used as a basis between the parties involved in subsequent legal disputes. The expert opinion therefore also served the interests of the data subjects, which is why they could also base their right to information on the principle of "equality of arms".

No Abuse of Rights Under Article 12(5) GDPR

Ultimately, the court examines whether the right to information is abusive in accordance with Article 12(5) GDPR and denies this.

In principle, the right to information serves to control the lawfulness of the processing of personal data. However, the pursuit of a secondary purpose does not yet meet the objection of abuse of rights. Rather, the motives for a request for information do not have to be disclosed at all, so that it cannot be relevant for the weighing. Accordingly, the court refers to the prevailing German case law, according to which it is irrelevant if the data subject indicates that they are requesting the data in order to prepare a legal dispute or to improve their position in such a dispute.

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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.