OLG Stuttgart - 4 U 484/20

OLG Stuttgart - 4 U 484/20
Court:	OLG Stuttgart (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 16 GDPR
Decided:	24.11.2021
Published:
Parties:	Facebook
National Case Number/Name:	4 U 484/20
European Case Law Identifier:
Appeal from:	LG Ellwangen A5 O 176/20
Appeal to:	Unknown
Original Language(s):	German
Original Source:	OpenJur (in German)
Initial Contributor:	Sara Horvat

The Higher Regional Court of Stuttgart held that a data subject could not rely on his right to rectification pursuant to Article 16 GDPR to revoke his Facebook ban as the ban was applied correctly according to Facebook's policies and did not infringe upon the freedom of expression.

English Summary

Facts

A Facebook user, the data subject, posted content that violated Facebook´s policy about mobbing and bullying. As a result, the post was erased and the user was set into a "Readonly"-Mode which banned him from actively using his Facebook profile. Information about the ban became part of the dataset about the data subject.

In previous proceedings at the Regional Court of Ellwagen, the legal dispute between the parties were the questions concerning the context in which the content was posted, whether the policy was valid, whether the ban constituted a violation of the freedom of expression, and whether the consequence of the "Readonly" mode was permissible. The Regional Court of Ellwangen dismissed the case. In its decision, the Regional Court of Ellwagen held that the policy was valid and that the data subject violated Facebook's policy with his bullying and harassment.

The information about the erasure and "Readonly" mode of the data subject is being processed by the data controller. Since the data subject was appealing the decision of the first court on the false use of law and on the grounds that there was no violation of the Facebook's policy, the data subject argued that the controller is obliged to correct the stored dataset on the data subject and erase the information of the violation of the policy pursuant to Article 16 GDPR.

Holding

In its decision, the court held that Facebook's policy was binding and that the content posted by the data subject violated the policy. The data controller had the right to erase the data subject's content and to ban the data subject from actively using its services. Therefore, the personal data that was processed was correctly and no right for rectification of the data pursuant to Article 16 GDPR could be exercised.

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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.

OLG Stuttgart, judgment of November 24th, 2021 - 4 U 484/20
reference
openJur 2022, 18742

    Rkr:

tenor

I. On appeal by the plaintiff, the judgment of the Ellwangen Regional Court of December 9th, 2020, Az. 5 O 176/20, is amended.

1. The defendant is sentenced to correct the plaintiff's data stored by it in such a way that the existence of a violation of the terms of use by the contribution deleted on May 5th, 2020 is deleted from the data record and the counter that records the number of violations by a violation is reset.

2. The defendant is given up the plaintiff's contribution deleted on 05/05/2020

unlock again.

3. The defendant is sentenced to refrain from blocking the plaintiff again for posting the text mentioned in Section 3 on www.facebook.com or deleting the post if the latter responded to another user's sentence that the plaintiff would say "nonsense". In the event of an infringement, a fine of up to EUR 250,000, alternatively imprisonment, or imprisonment will be threatened; the orderly detention is to be carried out at the board of directors.

II. The plaintiff's further appeal is rejected, the lawsuit dismissed in this respect.

III. The costs of the legal dispute in both instances are offset against each other.

IV. The judgment of the Regional Court of Ellwangen, insofar as it has been upheld, and this judgment of the Senate are provisionally enforceable.

V. The revision is not admitted.

Value in dispute: EUR 9,500.00
reasons

I

1. The plaintiff asserts various claims for the deletion of a post he posted on www.facebook.com.

The plaintiff maintains a private user account on the global social network Facebook, which the defendant offers to German users. There are conditions of use and community standards to regulate the use; by clicking the "I agree" button on May 21, 2018 (Annex B 44), the plaintiff has the updated and amended conditions of April 18, 2018 (compare Annexes K 1, K 3 and BGH, judgment of July 29, 2021, III ZR 179/20 paras. 4 - 6) approved. He is of the opinion that these were not effectively agreed as general terms and conditions and are ineffective - because of the details, reference is made to the facts of the district court judgment sheet 280 - 281.

In its decision of June 23, 2020 (KVR 69/19 paras. 2 - 4), the Federal Court of Justice described the defendant's business model as follows:

The Facebook network offers private users the use of a platform with a range of functions through which they can communicate with third parties, in particular people close to them (friends), make texts, images and films accessible to them (share them) and set up interest groups or such can join. This requires a registration, with which the user creates a personal Facebook account and a user profile in which he provides information about himself and other personal circumstances. He can also state his interests and post a profile photo. On this basis, Facebook provides the user with personal Facebook pages. Current messages (posts) from friends or third parties to whose messages the user has subscribed are displayed in a standardized format (news feed) on the respective start page. The user can distribute his own contributions via "status reports".

The social network is funded by online advertising. Facebook's advertising partners are provided with an advertising manager who can determine the appropriate target group and place the advertising on the Facebook pages. A company can transmit its own customer list in encrypted form to Facebook via an interface (Facebook Pixel). With various other programming interfaces provided (Facebook Business Tools), Facebook enables companies to connect their own websites or applications for mobile devices (apps) to Facebook pages in a variety of ways. A Facebook user can use functional extensions (plugins) of company pages to express their interest in these pages or certain content ("Like button" or "Share button") or make comments; Corresponding posts then appear in the news feed of his Facebook friends. With a Facebook login, a Facebook user can log in to third-party websites using all common operating systems with their registered user data. The success of a company's advertising can be measured and analyzed using measurement and analysis functions and programs offered by Facebook. Not only data about the behavior of users on Facebook pages is recorded, but also data about third-party pages called up by Facebook users, for example via Facebook pixels. The analytical and statistical functions of Facebook Analytics provide companies with aggregated data on how users interact with the services they offer across different devices, platforms and websites.

Setting up the Facebook account requires the user to agree to Facebook's terms of use. These stipulate, among other things, that Facebook provides each user with a "personalized experience" for which their personal data available to Facebook - including data resulting from the use of other group-owned services and from other Internet activities by the user outside of facebook.com - be used. The Terms of Use refer to a data policy that explains, among other things, that user-provided information and device information for all "Facebook Products" used, including information sent via Facebook Business Tools, is collected and shared by "Facebook Partners". get connected. A Facebook cookie policy, to which the data policy refers, contains the notification that Facebook places page-related text information (cookies) on the user's device and can thus receive information that is stored there when the user visits Facebook pages or websites of others companies using Facebook Business Tools, without requiring any further action from the user.

On May 5th, 2020, the plaintiff's contribution was

deleted by the defendant and the plaintiff put into the so-called "read only" mode for 30 days. The plaintiff was able to access his account and view content, but was prevented from publishing content himself, commenting on other users' posts and using the messenger function. The defendant justified its actions with the fact that the plaintiff violated the prohibition of bullying, bullying and harassment in the community standards because of the comment.

Insofar as the defendant refers to the fact that a subsequent hearing took place (sheet 22 and again in general in the brief of October 25, 2021 sheet 187 eA), it cannot be inferred from the presentation what the plaintiff’s substantive justification for his contribution and its maintenance was and why the defendant did not follow this argument.

There was a dispute between the parties at first instance,

• the context in which the plaintiff's post was posted (reaction to a post in Cxxx Mxxx or reaction to an article in the Txxx Exxx blog),

• whether the community standards and terms of use amended in 2018 have been effectively agreed or are effective at all,

• the defendant must allow the basic right of freedom of expression to apply directly against him,

• the application for a declaratory judgment number 3 (declaration of no right to block/restriction of the right of use) is permissible at all.

2. The District Court of Ellwangen dismissed the action.

The terms of use and community standards are effectively included in the contractual relationship and stand up to a general terms and conditions content check. The plaintiff violated the ban on bullying and harassment because the post described a third-party user as stupid and useless. The related terms represented a disparagement, the term break uncle would disparage another participant without any interest in the content of the discussion and without their own point of view (page 293).

For further details of the facts and the findings of the regional court, reference is made to the judgment of the Ellwangen Regional Court of December 9, 2020 (5 O 176/20) (page 275 - 297; Section 540 (1) sentence 1 no. 1 ZPO ).

3. The plaintiff's appeal alleges a violation of substantive law.

a. In view of the importance of the platform for the discussion of political issues in Germany, the fundamental importance for freedom of expression (page 49 eA) and the monopolistic market power also determined by the highest court, the defendant cannot have any right or right of doubt in this regard, based on a purely subjective assessment and its own discretion to delete comments and posts and to block users, although the limits of permissible expression of opinion have not been exceeded. The defendant must observe the fundamental right to expression of opinion directly, at least indirectly.

b. The regional court's judgment did not take sufficient account of the fact that the user's ability to express opinions is a main contractual obligation. The defendant undertook to publish content, to transfer it to another account or to make it accessible as part of the agreed continuing obligation. The purpose of the platform is to provide the user with a "public marketplace" for information and the exchange of opinions.

c. The plaintiff's consent did not lead to a change in the terms of use and community standards, because

• the change clause contains an unreasonable disadvantage according to § 307 Abs. 1 BGB,

• the clause violates Art. 3 Para. 3 of Directive 93/13/EEC because there was no valid reason for the change,

• the clause violates § 308 No. 5 BGB because the fictional effect cannot be eliminated,

• the forced consent through the "take it or leave it" selection is immoral.

i.e. The disputed contribution did not violate the community standards, the district court did not adequately deal with the various alternative understandings. In this respect, the focus should not be on the horizon of understanding of a judge, but on the "unsophisticated" recipient, especially since other terms are used online. It is already evident from the contribution that a heated discussion had been held here, the comment was made in a context-related and factual manner, it was a statement in the context of a political dispute, after the plaintiff had previously been accused of trouble, the plaintiff in this respect only launched a counterattack. The blocking decisions would have to take the right of expression into account.

e. In a brief dated October 18, 2021, the plaintiff referred to the decisions of the Federal Court of Justice of July 29, 2021 (III ZR 179/20 and III ZR 192/20), according to which the clauses in No. 3.2 of the Terms of Use in conjunction with Part III No. 12 of the Community Standards do not withstand a content check and are therefore void (in this respect, reference is made to pages 168 - 181 eA).

f. The defendant and the district court had not carried out the necessary appropriateness and proportionality test, the block was completely disproportionate to the occasion.

G. Due to the incorrect assumption of a violation, the district court erred in law in not examining the claims asserted with the lawsuit.

ah. The right to data correction results directly from Art. 16 Sentence 1 VO (EU) 2016/679 (GDPR), because a permissible contribution may not be considered a breach of contract at any time. The defendant noted the deletion of the contribution and the blocking in the data record relating to the plaintiff, and because the violation was not present, the counter, which was therefore incorrect, had to be reset. The Munich Higher Regional Court (judgment of January 7th, 2020, 18 U 1491/19 Pre) also correctly granted a corresponding claim.

bb The plaintiff is entitled to a finding that the ban was unlawful because it could no longer be lifted in the past. The current interest in finding results from preventing the defendant from being blocked from Facebook in the future and from the risk of intensifying sanctions, e.g. with regard to the length and duration of future blocks. In this respect, the application for a declaration also refers to other contributions.

The application for a declaratory judgment also pursues the goal of rehabilitation and the enforcement of effective legal protection. It represents a disparagement in need of rehabilitation to be excluded from Facebook participation. A 30-day lock is also noticeable for other users. Even if the plaintiff does not use the defendant's platform at times, a 30-day non-use of the platform is the result of other users who regularly communicate with the plaintiff or with whom the plaintiff makes regular contact on the platform (e.g. by sharing or Like of posts from other users), very well.

cc Since the post was illegally deleted, it must be restored. The content of the concluded contract is precisely that users are allowed to write and publish contributions of their choice without the defendant having to decide on their content.

dd. From the contract of use in conjunction with § 1004 BGB follows a right to omission of a block and removal, a risk of repetition is indicated in this respect.

hey The plaintiff has a right to information. He is in excusable ignorance as to whether third parties were involved in the blocking. The legitimate interest in corresponding information results from the fact that claims from § 826 BGB are not excluded. If the service provider is allowed to provide information according to Section 14 (3) TMG, the same must apply to an unlawful accusation of disseminating illegal content. The plaintiff sufficiently stated that the blocking had been carried out by a commissioned company and was carried out on instructions from the Federal Government, and that the aim of the censorship on the part of the defendant was based on a political objective on the part of the Federal Government.

Due to the existence of a violation of personal rights, the interests are not protected by any existing claims against the defendant. The deletion of admissible expressions of opinion on the basis of terms of use also constitutes immorality under Section 138 (1) BGB, because the objective value system of fundamental rights also applies to good manners.

ff. With regard to the influence of the federal government, the same applies under ee. executed. If the ban was due to state intervention, there would be a claim against the Federal Republic of Germany.

gg. A claim for damages results from §§ 280, 241 BGB. There is a right to monetary compensation because there is a serious risk of further similar infringements and the 30-day ban is to be assessed as a serious infringement of personal rights and there is no other possibility of compensation. In the asserted claim for damages, the regional court did not sufficiently take into account the undisputed monopoly position and importance of the platform for the discussion of political issues in Germany and the fact that enabling the expression of opinions is the defendant's main contractual obligation.

Due to the possibility of using his registered user data, which was passed on to the defendant during the block, damages are also owed as a fictitious license fee. This has already been correctly established by district courts.

In addition, there is a corresponding claim because of the unlawful processing of the data from Art. 82 Para. 2 Sentence 1 GDPR, this is EUR 50.00 per day.

uh Since the claims of the plaintiff are given, he is entitled to be exempted from the full amount of the legal fees.

The plaintiff requests (page 34 = 36 eA):

1. The judgment of the Ellwangen District Court of December 9th, 2020, Az. 5 O 176/20, is amended.

2. The defendant is sentenced to correct the plaintiff's data stored with her in such a way that the existence of a violation of the terms of use by the contribution deleted on May 5th, 2020 is deleted from the data record and the counter that records the number of violations by a violation is reset.

3. It is established that the defendant had no right to remove the plaintiff’s post mentioned under Section 4, which was deleted on May 5th, 2020, on the platform www.facebook.com and to block the plaintiff because of this post in the form of a to impose restrictions on the use of the platform.

4. The defendant is given up the plaintiff's contribution deleted on 05/05/2020

unlock again.

5. The defendant is sentenced to refrain from blocking the plaintiff again for posting the text mentioned in Section 4 on www.facebook.com or deleting the post if the post responded to another user's sentence that the plaintiff would say "nonsense". In the event of an infringement, a fine of up to EUR 250,000, alternatively imprisonment, or imprisonment will be threatened; the orderly detention is to be carried out at the board of directors.

6. The defendant is sentenced to provide the plaintiff with information as to whether the blocking pursuant to Section 3 was carried out by a commissioned company and, in the latter case, by which company.

7. The defendant is sentenced to provide the plaintiff with information as to whether it has received specific or abstract instructions, notices, advice or any other suggestions from the Federal Government or subordinate agencies with regard to the deletion of contributions and/or the blocking of users, and if necessary . Which.

8. The defendant is sentenced to pay the plaintiff damages of EUR 1,500 plus interest of five percentage points above the base rate since May 5th, 2020.

9. The defendant is sentenced to indemnify the plaintiff from legal fees for the extrajudicial work amounting to EUR 691.33 by paying the REPGOW law firm.

The defendant requests:

The plaintiff's appeal is dismissed.

4. The defendant's response to appeal defends the regional court's judgment. In addition to the decisions of the Federal Court of Justice of July 29, 2021 (III ZR 179/20 and III ZR 192/20), the defendant submitted a pleading dated October 25, 2021 (page 182 - 205).

a. The updated terms of use were effectively agreed, there was no review according to Section 305 of the German Civil Code, and they also did not violate Section 307 (1) sentence 1 of the German Civil Code and Section 398 No. 5 of the German Civil Code. § 138 BGB is not affected.

The Federal Court of Justice expressly did not object to the fact that communication standards could be defined, which is why the effectiveness of the communication standards remained (page 183, 185 eA). Certain procedural steps were only required for procedural enforcement (sheet 184 eA). The requirements developed by the Federal Court of Justice contradict constitutional law and international legal developments (page 186 f. eA).

b. The plaintiff's post violated community standards as bullying and harassment because the use of the terms dumbass, dumbass, dumbass, and just shut up constitutes a derogatory attack, particularly on the intelligence of the other user. The previous provocation by the other user does not lead to the admissibility of the contribution.

The contribution violates criminal law, since the terms Stussindianer, Pausenunkel and Stusskopf are to be regarded as punishable insults (sheet 187 - 189eA).

The defendant was therefore entitled to remove the contribution and temporarily block the plaintiff's account. Even taking into account the decisions of the Federal Court of Justice, the ban on bullying and harassment was effectively agreed, which is why the plaintiff (even if the general terms and conditions on the removal and blocking reservations were ineffective) was obliged to accept the deletion according to the contractual requirement of consideration. In any case, such a result results from a supplementary contract interpretation of the user contract, which is necessary in the event of the regulation being void, at least if - as here - the procedural requirements specified by the Federal Court of Justice have actually been complied with (in this respect, reference is made to pages 189 - 199 eA).

c. The district court correctly denied the plaintiff's claims.

ah. Art. 16 GDPR gives a right to data correction, but the information that the plaintiff violated the terms of use was correctly recorded in the defendant's system.

bb The application for a declaratory judgment lacks the necessary interest in declaring, since it is a question of a past and completed restriction on the use of the account. A continued determination interest is foreign to the civil proceedings. For the rest, the priority of the action for performance applies insofar as the plaintiff wants to assert further current consequences. There is no interest in rehabilitation.

cc The asserted claim for restoration does not exist because the removal of the disputed contribution was lawful.

dd. the plaintiff has neither a contractual nor a legal right to injunctive relief. Restoration cannot be required in any context, as depending on the context, the contribution may be inadmissible. The application did not provide the necessary restriction.

hey The plaintiff could not request any information because the prerequisites for such a claim were not met and no legitimate interest in the requested information had been demonstrated. Decisions of other Higher Regional Courts had correctly stated that, for example, there were no indications of the existence of any instructions from regulatory authorities.

ff. The plaintiff has no claim for damages because there is no serious violation of personal rights, the plaintiff cannot rely on a fictitious license fee and also has no claims under Article 82 (2) of the General Data Protection Regulation.

i.e. There is no entitlement to reimbursement of pre-trial legal fees, since a reminder was not superfluous.

5. Due to the further arguments of the parties, reference is made to the briefs exchanged together with the annexes submitted. With regard to the presentation in the oral hearing and the information provided by the parties, reference is also made to the minutes of the meeting of November 17, 2021.

II.

The appeal is admissible; in particular, it was duly filed and justified within the specified or extended deadlines. However, the appeal is only partially justified (applications for restoration, injunctive relief and data correction), but is unsuccessful in any case with regard to the other applications (assessment, information and damages).

The judgments of the Federal Court of Justice of July 29, 2021 (III ZR 179/20 and III ZR 192/20) clarified that

• although the defendant has a fundamental right to specify communication standards that go beyond the legal requirements,

• However, the terms and conditions are void because they do not provide for a prior hearing before a block/deletion,

• why blocking is currently only permitted if criminal content is present.

1. The international jurisdiction (to be checked ex officio, compare only BGH, judgment of 27.02.2018, VI ZR 489/16, NJW 2018, 2324 para. 15) results from Art. 17 Para. 1 c, 18 Para 1 of Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of December 12, 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Ia-VO), after the plaintiff as consumer acted.

A contractual obligation of the defendant within the meaning of Art. 7 No. 1 lit. If the blocking of the plaintiff or the deletion of a contribution he posted on "Facebook" constitutes a "damaging event" within the meaning of Art. 7 No. 2 EuGVVO, this would also primarily occur at the plaintiff's place of residence (also OLG Munich, Judgment of January 7th, 2020, 18 U 1491/19, GRUR-RS 2020, 2103 para. 54).

German law applies to the contractual relationship. The contract is subject to Art. 3 Para. 1, Art. 6 Para. OJ 2008 L 177, page 6) by the parties as evidenced by Section 4 of the Terms of Use

If you are a consumer and habitually reside in a member state of the European Union, the laws of that member state will govern any claim, cause of action, or dispute you have against us arising out of or relating to these Terms of Service or the Facebook Products resulting ("claim"). You can have your claim resolved in any court in that Member State that has jurisdiction over the claim.

chosen German law (Federal Court of Justice, judgment of July 12, 2018, III ZR 183/17, NJW 2018, 3178 [3179 para. 20]).

2. The application for a declaratory judgment (plaintiff's application number 3) is inadmissible. With correct considerations, the regional court assumed that the application for a declaratory judgment, according to which there was no right to delete the contribution and block the Facebook profile (according to the application, sheet 35 eA), is inadmissible because the necessary interest in the determination pursuant to Section 256 (1) ZPO is missing .

a. In principle, the subject of a declaratory action can only be the existence or non-existence of a current legal relationship. A legitimate interest in the determination of a past legal relationship can only be considered in exceptional cases if legal consequences for the present and the future can result from this, i.e. if there is a current interest in the determination of the past legal relationship. It is not one of the tasks of the courts to certify a participant as to whether he was right or not (BGH, judgment of June 17th, 2016, V ZR 272/15, NJW-RR 2016, 1404 [1405 para. 13]; OLG Braunschweig GRUR-BeckRS 2020, 4161 Rn. 130 - 134; OLG Munich GRUR-RS 2020, 2103 Rn. 56).

The permissible object of a declaratory action can also be individual rights and obligations arising from a legal relationship, but not mere elements or preliminary questions of a legal relationship, pure facts or, for example, the effectiveness of declarations of intent or the illegality of behavior (BGH NJW 2018, 3441 [3442 para. 13]; BGH NJW 2000, 2280 [2281]).

In principle, there is no interest in a determination if the plaintiff can also bring an action for performance. If a legal relationship is disputed, the declaratory action is inadmissible if it is possible and reasonable for the plaintiff to immediately obtain a judgment from which enforcement can also take place, i.e. he can achieve his goal with an action for performance (BGH NJW 2019, 661 [662 para. 26]; BGHZ 134, 201 [208 f.]; loc. cit. Musielak/Foerste, ZPO, 17th edition 2020, § 256 para. 12).

b. The circumstances presented by the plaintiff do not lead to the affirmation of an interest in the determination. The assumption that the lack of possibility of lifting the ban for the past must enable the desired determination counteracts the requirements of the highest court case law on the determination interest, because then determinations could be made about a past legal relationship. The plaintiffs themselves also concede that the instrument of a continuation declaratory action does not exist in civil law.

Insofar as the plaintiff referred to the judgment of the Federal Court of Justice of June 17, 2016 (V ZR 272/15), this does not lead to a different assessment, since the necessary legal interest was also denied in this respect. Insofar as the plaintiff is aiming for damages and rehabilitation, he has submitted a corresponding application for payment, in which context a clarification can be achieved if necessary. In any case, there is no interest worthy of protection in having a mere preliminary question or an element of the legal relationship "claim for damages" or the legal relationship "right to terminate" determined by the illegality of the block.

Insofar as the plaintiff aims to prevent future blocks and to prevent an intensification of sanctions, the determination of the illegality of the block did not lead to the removal of the eventual disputed process from the defendant's data regarding the plaintiff (also OLG Munich GRUR-RS 2020, 2103 para. 58). This goal cannot be achieved with a declaratory action. Even insofar as the plaintiff asserts in this context that he lacks the relevant knowledge of how the defendant proceeds here, which is why it is not possible to demand a sufficiently specific service, this does not lead to a different assessment. Because it follows from the burden of presentation and proof on him that it is his business to formulate the relevant claims for benefits and to hold the necessary presentation, whereby because of the secondary burden of presentation that may exist on the part of the defendant (which is also reflected in their terms of use to corresponding information) there are no overly high requirements here. In addition, it would be possible for the plaintiff to formulate a corresponding priority application for benefits, for example to the effect that the defendant is convicted, the blocking of the contribution and the subsequent blocking of the plaintiff's profile for 30 days in the event of an alleged renewed violation of the conditions of the Defendant and/or a termination of the account is not to be taken into account (for a similar wording, compare OLG Munich GRUR-RS 2020, 2103 operative part II. 2). The fact that the plaintiff's attorney-in-fact is aware of the possibility of such a procedure and is able to do so is shown by the application for data correction.

In this respect, the plaintiff cannot invoke a continuing interest in rehabilitation. According to the cited decision of the Federal Court of Justice (V ZR 272/15), the desire for rehabilitation only justifies a determination interest if it can be recognized as worthy of protection with a reasonable assessment of the circumstances of the individual case. In this case, it is not sufficient for the assumption of an interest in a determination that the person concerned found the measure objected to to be discriminatory. Rather, the decisive factor is whether, from an objective and reasonable point of view, adverse after-effects of the measure continue to exist, which could be effectively countered by a judicial determination of the illegality of the action (BGH, judgment of 06/17/2016, V ZR 272/15, para. 19; BVerwG NVwZ 2013, 1550 [1551]). In this respect, the plaintiff merely submitted that his social position had been adversely affected by the ban, that he had been degraded in this position and that the exclusion had had discriminatory repercussions. In the appeal process it was stated (page 82 eA):

The social status of the plaintiff has been noticeably affected by the blocking and deletion. The block imposed by the defendant on the plaintiff has discriminatory repercussions for the plaintiff. He was impaired and degraded in his social position and as a person. It is a disparagement in need of rehabilitation to be excluded from Facebook participation.

This submission is not sufficient to actually assume an interest in rehabilitation, because apart from these general statements, it has not been further specified to what extent (e.g. also to whom) a specific impairment actually existed, who spoke to the plaintiff, e.g. about the ban.

Both the plaintiff's submissions and the defendant's submissions ultimately only contain legal statements, in which passages from decisions of the highest court are reproduced, without the necessary concrete and case-related presentation of the facts as to the after-effects of the ban from May 5th, 2020.

3. In the judgment of July 29, 2021 (III ZR 179/20 paras. 31 - 50), the Federal Court of Justice correctly and convincingly stated that the plaintiff had agreed to the changed terms of use and community standards by clicking on the "I agree" button, the necessary amendment contract has thus come about. To avoid unnecessary repetitions, the Senate refers to the judgment of July 29, 2021 (III ZR 179/20 paras. 31 - 50) and adopts the statements there for the present case to avoid unnecessary repetitions. The plaintiff's points of attack are dealt with there in full and exhaustively.

4. The application for the reinstatement of the contribution (plaintiff's application number 4) is justified. After the plaintiff, contrary to the requirements of the highest court, was not sufficiently heard (the terms and conditions do not provide for such), the contribution also does not meet the criminal offense of insult, the plaintiff has a contractual right to activation.

a. According to the most recent case law of the highest court, the user has a claim against the provider of a social network under §§ 280 Para. 1, 249 Para. 1 BGB to the activation of a post that was deleted in violation of the contract. From the contract of use, in which the defendant has undertaken to give users the opportunity to contact others, to exchange information with them, in particular to send messages and share data (texts, photos, videos), it follows that the defendant may not delete contributions posted by users in the social network without reason (Federal Court of Justice, judgment of July 29, 2021, III ZR 179/20 para. 28).

The disputed terms of use and community standards in the proceedings before the Federal Court of Justice and also in the present proceedings with regard to the removal and blocking reservations of contributions violate § 307 para. 1 BGB and are therefore void (BGH, judgment of July 29, 2021, III ZR 179/20 para. 29, 51 - 97). However, the operator of the network is generally entitled to stipulate compliance with certain communication standards that go beyond the criminal law requirements (Federal Court of Justice, judgment of July 29, 2021, III ZR 179/20 para. 78). There must be an objective reason for the removal of content and the blocking of user accounts (Federal Court of Justice, loc.cit., para. 81); a link to objective, verifiable facts is required (Federal Court of Justice, loc.cit., para. 82). Reasonable efforts are required to clarify the facts as carefully as possible by means of a prior hearing of the person concerned (Federal Court of Justice, loc.

b. Irrespective of the effectiveness of the disputed terms of use and community standards with regard to the removal and blocking reservations of contributions, there is a right to remove the contribution if it has criminal content. Because the defendant is required to act immediately to remove or block criminal content from the social network as soon as it becomes aware of facts or circumstances from which the illegality of the contributions is obvious (§ 10 sentence 1 no. 2 TMG ; Section 4 (1) no. 2 in conjunction with Section 3 (1) sentence 1, (2) sentence 1 nos. 2 and 3 NetzDG; BGHZ 217, 350 marginal number 31; OLG Braunschweig GRUR-BeckRS 2020, 41161 marginal number 103) .

ah. A slander or abusive criticism that constitutes an insult is only given if a statement no longer has any comprehensible reference to a factual dispute and it is only about the baseless disparagement of the person concerned as such. There are cases in which a previous argument is only externally taken as an opportunity to badmouth or put down other people, for example in cases of private feuds (BVerfG BeckRS 2020, 28266 para. 16). This must be distinguished from cases in which the statement, even if it is seriously defamatory and therefore irrelevant, ultimately serves as an (excessive) means to the end of criticizing a situation. Then the utterer is not just concerned with defaming the person concerned as such, but the utterance presents itself as part of an occasion-related dispute. This is precisely where these cases differ from the cases of private feuds or from the cases in which it is otherwise - especially on the Internet - without reference, it is all about the disparagement of people. Accordingly, disparagements of honor, even if they are particularly blatant and drastic, are not to be regarded as abuse if they are still related to factual disputes. The fact that the classification of defamatory statements as insult remains an exception to be handled narrowly corresponds to the principle of balancing fundamental rights by weighing them up. In the normal case, it must be ensured that a conviction for insult does not come about without taking into account the specific circumstances of the case and not without looking at its fundamental rights dimension (BVerfG BeckRS 2020, 28266 para. 16). If there is no narrowly defined exception constellation of abuse/abuse criticism that makes a consideration unnecessary, then this does not justify in the case of statements with which the honor of certain people are disparaged, no indication that freedom of expression takes precedence. However, a prerequisite for a criminal sanction is - as is the normal case for the balance between freedom of opinion and personal rights - a fundamental rights-based assessment, which is based on the open-ended elements of the offense and criminal liability requirements of the Criminal Code, in particular the terms "insult" and the "protection of legitimate interests", connects. This requires a comprehensive examination of the specific circumstances of the case and the situation in which the statement was made.

In this respect, the objective meaning of the contribution must be determined and recorded from the point of view of an unbiased and informed audience (OLG Munich, judgment of January 7th, 2020 - 18 U 1491/1, para. 126). It depends on the understanding of an impartial average observer and the general use of language. When assessing statements on the defendant’s platform, a rather fleeting average observer should be used (OLG Stuttgart, decision of September 6th, 2018 - 4 W 63/18; printed in NJW-RR 2019, 35). In addition, the statement must not be taken out of the context in which it is concerned and subjected to a purely isolated consideration (Federal Court of Justice, judgment of April 12, 2016 - VI ZR 505/14, para. 11).

bb Based on these principles, no behavior relevant to criminal law can be recognized in the statements of the plaintiff deleted by the defendant. The defendant asserted for the first time in the pleading of October 25, 2021 - albeit only very generally - (page 189 eA) that the plaintiff's statements meet the criminal offense of an insult. In fact, this is not the case. Although these are tasteless statements that are detrimental to a factual culture of debate, in view of the undisputed context of the statement - this was made, as evidenced by the content, in the context of the dispute about the so-called Nuremberg trials - the terms Stussindianer, Pausenunkel and Stusskopf do not yet represent a slur, because it was a statement in an occasion-related dispute.

(1.) During the oral hearing before the Senate, the plaintiff expressly admitted that his contribution was blocked. After pointing out that he had reacted to the term "stupid" in paragraph 5 of the application and in his court case, the Senate is convinced that he also commented accordingly on the original contribution in Txxx Exxx. However, the plaintiff initially stated that he had reacted to a contribution in Cxxx-Mxxx, in which the following was stated (according to sheet 91):

Cxxx-Mxxx

2.May

75 years after the end of the war: silence about crimes against Germans, Even three quarters of a century after the end of this terrible war, crimes against Germans during the war and afterwards are still not openly discussed. Time to break this taboo.

The content of the original post also fits better with the plaintiff's statement, since he was not insulted as a stupid Indian in the Cxxx-Mxxx.

In contrast, the original post in the blog "Txxx Exxx", to which the plaintiff responded, reads as follows (B 81, sheet 265):

The Wehrmacht was a conscript army. Desertion was punishable by death. Several tens of thousands of members of the Wehrmacht were killed because of desertion. So it was not a voluntary decision to join the Wehrmacht, people would be forced into the army and into the war by Hitler's dictatorship. This connection must always be considered when moralizing. The will for peace among the German people was so great that Hitler only spoke publicly about peace until 1938 and even the Allies believed peace was secured after the Munich Agreement of 1938 (Neville Chamberlain: "Peace for Our Time"). The Wehrmacht was not condemned as a criminal organization by the Allies at the Nuremberg war crimes trials, and was therefore acquitted. This means that no member of the Wehrmacht is a criminal unless he has been individually convicted of a crime. Mr. Gxxx, you only write misanthropic, ahistorical, infantile nonsense here.

The plaintiff's response to this was as follows:

You are the stupid Indian here. A total of 185 persons were accused at Nuremberg: 39 doctors and lawyers (cases I and III) 56 members of the SS and police (cases IV, VIII and IX) 42 industrialists and managers (cases V, VI and X) 26 military leaders (cases VII and XII) 22 Ministers and senior government officials (Case III and XI). So if that were the way you claim, then about 185 people would have fought the whole war alone. YOU KNOW THAT IS NUDGE! And: In Nuremberg, the question of whether the Wehrmacht was an idiot organization and criminal was not discussed at all, you break uncle.

So dumbass, just shut up.

After the plaintiff's post reacted - quite exaggeratedly and very pointedly - to the blog statement that the Wehrmacht was not the subject of the war crimes trials and had even been acquitted (which is historically incorrect; https://de.wikipedia.org/wiki/Process_Oberkommando_der_Wehrmacht ), the statements made by the plaintiff, which are to be regarded as a retaliation, are statements in the context of a political and historical debate. Since the question of the responsibility of the Wehrmacht is of great political and historical interest and is repeatedly discussed in public (compare e.g. https://www.dw.com/de/n%C3%BCrnberger-processes-die-konfrontation- mit-ns-verrechte/a-55630771 and https://www.bpb.de/geschichte/deutsche-geschichte/der-zwei-weltkrieg/199413/die-tracking-national-socialist-violent-crime) the statements of the plaintiff are part a factual and occasion-related debate, which is why the use of the terms Stussindianer and Pausenunkel may be rated as unfortunate, but is to be accepted in the matter at hand.

In addition, it is a reaction to an assessment by the blog writer, who had stated that the plaintiff had written inhumane, ahistorical infantile nonsense, which is why the principles of the so-called "right to counterattack" are also to be accepted (BverfGE 24, 278 [289]), because the statements of the plaintiff with regard to the importance of the topic are to be evaluated as an adequate reaction to the behavior of the blog writer.

In this respect, it should also be noted that the parties largely limit themselves to working with text modules and passages from court decisions, but are not very specific in terms of content, for example by disclosing the entire chat history or making their own content-related considerations.

c. Since the threshold of a criminally relevant relationship has not been reached, the principles set out by the Federal Court of Justice in the decisions of July 29, 2021 are decisive, after the disputed terms of use and community standards correspond to those from the decisions of the Federal Court of Justice. The regulations provided for in the terms of use and community standards regarding the removal and blocking reservations provided there are therefore void for the reasons communicated by the Federal Court of Justice.

ah. The plaintiff has therefore - a prior hearing did not take place, what happened subsequently has not been presented sufficiently in terms of content (on what grounds, on what basis was the block made, to what extent was the previous contribution included in the consideration, etc.) - a contractual Claim for activation of the contribution. It is therefore not important whether the conditions for bullying etc. are met. The presentation in the brief of October 25, 2021 does not lead to a different result, because again it is only presented in general terms, but it is not comprehensible in terms of content why there should be a violation of the standards in this respect. In the end, it doesn't matter at all, since the terms and conditions are void and the contribution has to be restored because the criminal liability threshold was not reached (as the BGH also decided in the matter). There is simply no contractual provision for sanctioning breaches of duty under the contract.

bb In this respect, the defendant cannot invoke a supplementary interpretation of the contract, because the necessary gap is missing. It remains possible to set up or comply with a procedural procedure (as the defendant put it) without further ado, and content that is relevant to criminal prosecution is definitely inadmissible. The defendant tries to justify the sanctions for the alleged violation of the general terms and conditions by means of the supplementary interpretation of the contract and ultimately to save with the argument that the procedure was actually (almost) as the BGH deems appropriate. However, it ignores the (legal) consequence of its general terms and conditions, which unreasonably disadvantage consumers, regarding the removal and blocking reservations according to the case law of the BGH, namely that the regulation is void and there is therefore no contractual basis for the removal of the contribution (and the 30th -day partial blocking of the account). This is not agreed between the parties. There is only a gap from the defendant's point of view because the desired sanction system is no longer available. The defendant is by no means defenseless against any violations by users of the - effectively agreed - communication standards, because in this case the legally regulated options for reacting to a breach of duty by the other party to the contract come into play. In particular, a supplementary interpretation of the contract must not lead to the result that general terms and conditions that have been declared null and void can still be regarded as effective through the back door, so to speak.

cc The defendant cannot invoke § 242 BGB either (it argues that it would blatantly contradict the requirement of consideration if the defendant were not entitled to remove a contribution), since a regulation could be achieved simply by changing the terms and conditions, which is why no The defendant's self-interest, which is worthy of protection, is to make the community standards viable via § 242 BGB. In addition, the consequences of the general terms and conditions declared null and void by the Federal Court of Justice would be counteracted in this way. According to this, the right to removal and deletion presupposes compliance with a certain procedure, which the defendant did not sufficiently observe in the present case.

Insofar as it is (alternatively) argued that the claim exists (without a contractual basis) at least if one actually complies with the requirements of the BGH, the defendant is ultimately "law-creating" in this respect, because this claim does not exist in the event of defaults in a contractual relationship , insofar as the statements to be removed do not have any criminally relevant content. This would mean that one could in any case withdraw to § 242 BGB, look for the solution considered "right" in the specific case and simply apply it.

dd. In this respect, it should be noted that there is no contractual legal basis for the deletion due to the invalidity of the General Terms and Conditions. Insofar as the defendant - also in the oral hearing before the Senate - pointed out that a corresponding deletion ultimately also takes place in the interest of the user, because the latter would then be spared a claim on the part of the defendant aimed at the omission of the objected statements and the associated costs, has lost sight of the fact that in Germany private law claims cannot be enforced by vigilantism, but that the state's monopoly on the use of force, anchored in Article 20 of the Basic Law, applies, according to which citizens can exercise their right to assert - even obviously legitimate - claims of the state institutions such as the courts and the enforcement bodies and cannot simply unilaterally create its own system of sanctions.

5. The request for an injunction regarding a renewed blocking or deletion of the contribution (application number 5 of the plaintiff) is justified. According to Section 280, Paragraph 1 of the German Civil Code, the plaintiff has the right to refrain from blocking the account again and deleting the post if it is posted again.

a. The request for an injunction is formulated with sufficient certainty because it has included the specific form of infringement. The requests for the omission of the specific form of infringement are regularly sufficiently specific within the meaning of § 253 Para. 2 No. 2 ZPO. The specificity of an application for an injunction is generally unproblematic if the plaintiff merely seeks a ban on the act as it was committed (Federal Court of Justice NJW-RR 2010, 1343 [1346 para. 36] - reminder advertising on the Internet; Federal Court of Justice GRUR 2001, 453 [454] - TCM center). The application has formulated the deleted text and thus included the specific form of infringement - this is sufficient.

b. From the considerations set out above, it follows that the defendant breached its contractual obligations by removing the contribution. The same applies to the partial blocking of the plaintiff's user account for more than 30 days. In this respect, the defendant was not entitled to the measures it had taken due to the invalidity of the terms and conditions for removal and blocking in Section 3.2 of the terms of use.

In the event of a breach of contractual obligations, a claim for injunctive relief can result from § 280 Para. 1 BGB. In any case, if there is a breach of duty within the framework of an ongoing contractual relationship and thus a breach of contract that is still ongoing in the form of the removal of a contribution, according to the standards in the judgment of the Federal Court of Justice of July 29th, 2021 (III ZR 179/20 para. 102) to assume a claim for injunctive relief following from Section 280 (1) of the German Civil Code. The risk of repetition arises from the breach of duty that has already been committed.

The limitation of the plaintiff (if he gives an answer to another user that the plaintiff is talking nonsense) proves that the only thing that matters to him with regard to the omission of a renewed blocking is that the right to counterattack is not taken away from him.

6. The request for data correction (plaintiff request number 1) is justified. A claim for data correction can only exist if the contribution can be restored, which is the case (see 4. above).

a. According to Art. 16 Sentence 1 GDPR, the data subject has the subjective right to demand immediate correction of incorrect personal data concerning them from the person responsible.

ah. The right to rectification only exists with regard to personal data within the meaning of Art. 4 No. 1 GDPR. According to this, "personal data" is all information relating to an identified or identifiable natural person (hereinafter referred to as "data subject" in the GDPR); an identifiable natural person is one who, directly or indirectly, in particular by association with an identifier such as a name, an identification number, location data, an online identifier or one or more special features, expresses the physical, physiological, genetic, psychological, economic, cultural or social identity of this natural person can be identified.

bb Incorrect data can be assumed if they are incorrect, untrue, inaccurate or falsified. According to a definition by the Federal Administrative Court, data are incorrect if the information they contain does not correspond to reality (BVerwGE 120, 188 para. 11). According to the necessary functional interpretation of Art. 16 Sentence 1 GDPR - and thus according to the usual case law of the ECJ on the facts of the GDPR, which tends to be rather broader - misleading, unclear or ambiguous data are also covered by the concept of incorrectness, insofar as they are relevant to the purpose of their data Processing put the data subject "in a wrong light" and thus affect their legal status (Kamann/Braun in Ehmann/Selmayer, GDPR, 2nd edition 2018, Art. 16 para. 14).

cc In addition to the inaccuracy of the data, a special interest in correction is not required. The right to rectification is also not dependent on the existence of damage (ECJ, judgment of May 13, 2014, C-131/12, BeckRS 2014, 80862 para. 96 - Google Spain and Google).

b. The defendant submitted (page 138 eA) that it stored the following information in its system:

- according to which the complainant violated their terms of use with his contribution,

- this post has been removed,

- the number of infringements committed by the plaintiff

It is therefore undisputed in procedural terms according to § 138 Para. 3 ZPO that corresponding personal data was recorded. Since, according to the statements under 4., it cannot be assumed that the terms of use have been violated, the data is incorrect in this respect, which is why the plaintiff can also request a correction of this data relating to him.

7. The plaintiff has no right to information as to whether the blocking was carried out by a commissioned company, and if so, by which company.

For justification, the Senate refers to the convincing statements of the judgment of the OLG Munich of January 7th, 2020 (18 U 1491/19) (GRUR-RS 2020, 2103, compare also OLG Dresden BeckRS 2019, 12941 marginal number 5), which in this respect has executed:

Paragraph 115

Due to a blocking of his profile caused by the defendant, the plaintiff can only make claims against the defendant, because all conceivable claims for performance and damages have their legal basis in the user contract existing between the parties in connection with § 241 Para. 2 BGB. Due to the relative nature of the obligation, third parties are not liable to the plaintiff for performance or damages. Rather, the defendant would have to be responsible for any culpability of the persons commissioned by it to carry out the blocking according to § 278 BGB, because these are their vicarious agents with regard to their obligation to take the rights and interests of the plaintiff into account.

Paragraph 116

Blocking the profile by a third party on behalf of the defendant cannot constitute a violation of the plaintiff's absolute rights within the meaning of Section 823 (1) of the German Civil Code, such as his general right of personality (Article 2 (in conjunction with Article 1 (1) of the Basic Law). ), or in his fundamental right to freedom of expression (Article 5(1) sentence 1 of the Basic Law). The plaintiff fails to recognize that the possibility of expressing and disseminating his opinion on the platform operated by the defendant is not open to him per se, but only due to the usage contract concluded with the defendant. The indirect third-party effect of the fundamental rights, to which the plaintiff relies, characterizes the contractual obligation existing between the parties as a special legal connection ("obligatio est vinculum inter personas"), but does not transform the plaintiff's contractual claims to the use of the services provided by the defendant into absolutely protected rights, which must be respected by everyone and the infringement of which can give rise to claims for damages in tort.

There is nothing to add. Otherwise, apart from legal statements, the plaintiff has not given any substantive justification as to why he could be entitled to corresponding claims for information. As far as the appeal states that tortious claims from § 826 BGB against third-party companies are not completely excluded, because of the censorship that has taken place, the basic right to freedom of expression of the plaintiff has been interfered with, which is why there is also a violation of § 138 Para. 1 BGB, everyone is missing Lecture from which, in view of the assessments and considerations to be made, connecting facts for intentional behavior of the relevant actors should result. Since there is no objection to the deletion of inadmissible posts, and since the deletion of posts with obviously illegal content within the meaning of the NetzDG is even mandatory for the operator through Section 3 (2) No. 1 NetzDG, the exercise of these powers does not constitute intentional immoral damage of the user concerned, which could justify a claim under § 826 BGB, even if the measures taken in individual cases should prove to be inadmissible after the necessary consideration and interpretation (OLG Dresden BeckRS 2019, 12941 marginal number 5). In addition, the breach of contractual obligations in itself does not justify the accusation of immorality (also OLG Dresden BeckRS 2019, 12941 para. 4).

8. For the reasons just set out (7.), there is also no entitlement to information about instructions from the Federal Government or subordinate agencies. The calls for action for operators of social networks triggered by the NetzDG can be found in the text of the law. No indicative facts are claimed for further influence in a specific individual case. In addition, there are no indications as to the extent to which state intervention had an impact on the deletion of the specific contribution (no presentation was made in this regard), the provisions of the NetzDG have third-party protective effects with regard to the plaintiff, which is why a possible claim has not been presented conclusively.

9. Because of the 30-day ban (the claim is based on this, part 88 eA), the plaintiff cannot demand any compensation either.

a. In any case, a claim based on §§ 241, 280, 249 BGB does not contain any concrete damage, because the damage calculation on the basis of a compensation of EUR 50.00 per day of blocking and also the statements on material damage in the context of a data protection claim do not apply what the deterioration of the plaintiff's financial situation is supposed to be.

According to the so-called difference hypothesis, whether there is financial damage to be compensated must be assessed by comparing the financial situation that occurred as a result of the event giving rise to liability with that which would have arisen without this event (BGH NJW 2011, 1962 [1963 para. 8]). . In this respect, it is necessary that the creditor's financial situation has objectively deteriorated; a mere threat to assets is not enough (BGH BeckRS 2017, 109283 para. 13).

The calculation on the basis of a denied use does not yet prove any concrete reduction in the assets of the plaintiff (which in this respect is also based on principles for assessing compensation for the alleged violation of personal rights). Insofar as the plaintiff points out that the prevention of the possibility of further spreading his opinion and the loss of control over her personal data caused material damage, there is also no demonstration of a loss of assets.

b. The plaintiff cannot demand any monetary compensation because of a violation of personal rights, because the blocking does not constitute an impairment of absolutely protected rights, and in any case there is no evidence of the serious violation required in this respect.

ah. For the reasons set out under point 7 - the Senate expressly adopts the statements of the Munich Higher Regional Court - there is already no impairment of an absolute right.

bb In any case, the plaintiff has not presented any facts that would result in the assumption of a serious violation of personal rights.

(1) According to the settled case law of the Federal Court of Justice, a culpable violation of the general right of personality justifies a claim for monetary compensation if the interference is serious and the impairment cannot be satisfactorily counteracted in any other way. Whether there has been such a serious violation of personal rights that payment of monetary compensation is necessary can only be assessed on the basis of all the circumstances of the individual case. In particular, the significance and scope of the intervention, i.e. the extent to which the publication was disseminated, the sustainability and persistence of the damage to the interests or reputation of the injured party, the cause and motive of the person acting and the degree of his or her culpability must be taken into account. In addition, the special function of monetary compensation in the event of violations of personal rights must be taken into account, which consists both in the satisfaction of the injured party for the interference suffered and is objectively justified in the idea that the right to privacy would otherwise remain without sufficient protection against significant impairments (BGH NJW 2014 , 2029 [2033 para. 38]).

(2) As far as the plaintiff points out that during the ban it was impossible for him to direct his self-portrayal on the account, there is a risk of loss of honor and authenticity of those affected, the withdrawal of control over the public-personal business card could have serious consequences affect the user's social sphere, the plaintiff only made general statements about possible impairments, but did not specifically state that corresponding impairments had actually occurred on his user account. This means that the demonstration of a violation of rights is missing, and it has certainly not been explained why this should be regarded as serious. For example, a pillory effect cannot be assumed. The duration of the block of 30 days does not justify a serious impairment, the plaintiff has not further explained in this respect what should result in a particular seriousness here. The compensatory and preventive functions also do not necessitate a different perspective, because it must be taken into account that the platform is made available to the plaintiff completely free of charge.

In the case law, it is also assumed with considerable consideration that a minimum lower limit applies to the question of monetary compensation, which the OLG Dresden locates at EUR 2,500.00 (OLG Dresden BeckRS 2019, 12941 para. 8), which still applies here after the plaintiff’s application is not exceeded.

c. The plaintiff cannot claim the damage claimed on the basis of a fictitious license fee, for which there is already a lack of the necessary impairment of corresponding subjective rights.

ah. With regard to intellectual property rights, the amount of an existing claim for damages can also be estimated by means of the so-called license analogy. The estimate is made at the discretion of the court, taking into account all the circumstances of the individual case (§ 287 ZPO), unless existing collective agreements can be used (BGH, judgment of 06/11/2015, I ZR 75/14, GRUR 2016, 191 [195 f 51] - Exchange III). In order to determine the appropriate license fee, what a reasonable licensee would have demanded in the case of a contractual grant and what a reasonable licensee would have granted if both had known the situation at the time of the decision must be objectively based on (Federal Court of Justice, judgment of March 22, 1990, I ZR 59/ 88, GRUR 1990, 1008 [1009] - license analogy), regardless of whether a license was actually granted (Federal Court of Justice, judgment of October 26, 2006, I ZR 182/04, NJW 2007, 689 - resignation of the finance minister ).

bb First of all, a statutory claim for damages to be measured analogously to a license does not result from an intervention by the defendant in the absolute subjective rights of the plaintiff. During the blocking period, the defendant also had a right of use to the data and content posted by the plaintiff (e.g. photographs, texts and possibly other works) and consent to data processing under data protection law.

(1) With the justification of the Facebook user contract, the plaintiff has the defendant as evidenced by number 3.3.1. and 3.3.2. of the terms of use, a corresponding, non-exclusive worldwide right of use to the posted content has been effectively granted and effective data protection law consent has been given to the processing of the data generated during use. By using the app, the plaintiff had given his consent to the authorization specified in the terms of use to save and use all contributions and received data. He has not declared a reservation for the period of any blocking. The opposite is neither stated nor evident.

(2) During the duration of an illegal blocking, this contractually granted right of use and the data protection consent did not expire because there was no corresponding agreement in this respect (to the general license agreement in this respect OLG Köln, judgment of October 31, 2014, 6 U 60/14, GRUR 2015 , 167 [172] - Creative Commons License). Both the granting of rights of use and the consent under data protection law are independent legal acts that are to be separated from the contractual obligation and are fundamentally independent of them - the granting of rights of use is a legal transaction in rem (Federal Court of Justice, judgment of 03/26/2009, I ZR 153/06, GRUR 2009, 946 [948 para. 18 ff.] - Reifen-Progressiv), the consent under data protection law is at least an act similar to a legal transaction (cf. Spindler/Dalby in: Spindler/Schuster, right of electronic media, 4th edition 2019, Art. 7 GDPR para. 11 with additional evidence and on the dispute over the dogmatic classification BeckOK-DatenschutzR/Stemmer, 31st edition, as of February 1st, 2020, Art. 7 GDPR marginal number 28). A partial non-performance on the part of the defendant that is contrary to contract therefore initially leaves the effectiveness of the granting of rights of use and the data protection consent unaffected (OLG Dresden, decision of June 11, 2019, 4 U 760/19, BeckRS 2019, 12941 para. 12). This does not take into account that the user can still use the read-only mode.

(3) An (implicit) declaration by the plaintiff to the defendant that led to a (temporary) expiry of the contractually granted right of use or the consent under data protection law during the blocking period is not evident. Whether users are (temporarily) entitled to suspend the contractually granted right of use in accordance with §§ 320, 273 BGB or have further contractual rights in the event of an illegal block can remain open, since these rights can only be exercised with effect ex nunc (BGH, judgment of July 13, 2007, V ZR 189/06, NJW-RR 2008, 172 [173 para. 18] - plow exchange contract). This also applies to the revocation of the data protection consent according to Art. 7 Para. 3 DSGVO, which is possible at any time.

i.e. A claim based on Art. 82 Para. 2 GDPR does not exist.

ah. According to Art. 82 (1) GDPR, any person who has suffered material or immaterial damage as a result of a violation of the GDPR is entitled to compensation from the person responsible or the processor. Art. 82 Para. 2 GDPR makes it clear that everyone responsible for processing is liable for the damage caused by data processing that does not comply with this regulation. Art. 82 GDPR directly establishes a claim under tort law, which stands in addition to the general claims under contract law and tort law.

According to Art. 6 Para. 1 GDPR, the processing of data is only lawful if

(2.) the data subject has given their consent to the processing of their personal data for one or more specific purposes (Art. 6 Para. 1 Sentence 1 lit. a);

(3.) the processing is necessary for the performance of a contract to which the data subject is party or for the implementation of pre-contractual measures that are taken at the request of the data subject (Art. 6 para. 1 sentence 1 lit. b);

(4.) the processing is necessary to fulfill a legal obligation to which the person responsible is subject (Art. 6 para. 1 sentence 1 lit. c).

bb There is no apparent violation of the GDPR. In particular, there is no processing of data that is not permitted under data protection law. The data processing is based on an effective plaintiff's consent, which continued to exist during the blocking period. Also possible competing claims due to data protection violations from §§ 280 Para. 1, 823 Para. 1, 823 Para. therefore do not exist.

Insofar as the plaintiff asserts that the blocking deliberately prevents the user from spreading his opinion in order to prevent the specific expression of opinion, the protective purpose of the GDPR does not include this - neither with regard to the material nor the immaterial damages claimed .

The mere blocking of the data, like the loss of data, does not constitute damage within the meaning of the GDPR. The OLG Dresden BeckRS 2019, 12941 para. 13 correctly states in this respect:

Furthermore, the Senate cannot see that the plaintiff would have suffered any material or immaterial damage within the meaning of Art. 82 GDPR as a result of the blocking. The mere blocking of his data, like the loss of data, does not constitute damage within the meaning of the GDPR (Wybitu/Haß/Albrecht, NJW 2018 p. 113 (114). The alleged inhibition in personality development due to the three-day blocking is at best trivial (see above) Even if in the literature, with reference to recital 146 of the GDPR, the view is occasionally taken that effective enforcement of European data protection law requires a deterrent effect and the waiver of the existing law (cf. BGH, judgment of 29.11.2016 - VI Z 530 /15) applicable threshold of materiality (Gola, GDPR, 2nd ed. Art. 82 Rn 13 with further references; also AG Dietz, judgment of November 7th, 2018 - 8 C 130/18 - juris), this does not justify any compensation for immaterial minor damage While per se protecting a subjective right that has a strong connection to the personal feelings of the individual, Art A claim is already justified in the event of any individually perceived inconvenience or minor violations without serious damage to the self-image or reputation of a person (Becker in: Plath, GDPR/BDSG, 3rd edition 2018, Article 82 GDPR, para. 4c). In particular, the reference to "full and effective compensation" in recital 146 of the GDPR cannot be understood in this sense (also Lach, jurisPR-ITS 5/2019 note 3). The protection of the right to informational self-determination as part of the general right of personality according to Art. 2 Para. 1 GG and the protection of personal data according to Art. 8 GRC do not usually require such a balance. This may be different in cases in which the breach of data protection law affects a large number of people in the same way and is an expression of a conscious, illegal and large-scale commercialization (Becker in: Plath, DSGVO/BDSG, 3rd edition 2018, Article 82 GDPR, para. 4d). However, that is not how things are here. The commercialization of user data is part of the defendant's business model; However, the blocking of the plaintiff's account does not promote this commercialization, but rather hinders it, because the plaintiff does not "produce" any data during this time that the defendant could use. The considerable risk of abuse, which would go hand in hand with the creation of an almost unconditional claim for pain and suffering in terms of legal consequences, especially in the area of data protection law, speaks against an extension of immaterial damages to minor damages. In view of this and the associated complete departure from the previously applicable legal situation, it would have been expected that such a change would have found clear expression in the text of the regulation or in the recitals. However, this is not the case.

The Senate adopts these considerations.

10. There is no entitlement to reimbursement of pre-court attorney's fees because the plaintiff did not send a reminder to the defendant before his attorney-in-fact was commissioned. The parties did not specify a time according to the calendar with regard to the services (§ 286 Para. 2 No. 1 BGB) and the plaintiff did not present sufficient connecting facts for the fact that a case of § 286 Para. 2 No. 4 BGB existed. The continuing obligation agreed between the parties did not justify any obligation on the part of the defendant to make the data available on a calendar day. In addition, it is about a blocking/deleting of the contribution and the 30-day blocking of the user account, i.e. a breach of duty asserted by the plaintiff, which took place on a specific calendar day, but no contractual agreement was made regarding it, which could be understood as an agreement on a service period could be viewed according to the calendar (§ 286 Para. 2 No. 1 BGB).

The possibility of continued use during the block did not justify any special reasons within the meaning of § 286 Para. 2 No. 4 BGB, one of the groups of cases discussed there (compare only Palandt/Grüneberg, BGB, 80th ed. 2021, § 286 marginal number 25) is neither apparent nor presented.

III.

The ancillary decisions are based on §§ 97, 708 No. 10, 711, 713 ZPO. Reasons for the approval of the revision are not apparent.

Gessler

pupils

Spenle

Presiding Judge at the Higher Regional Court

Judge at the Higher Regional Court

Judge at the district court
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