AG Lörrach - 3 C 112/24

AG Lörrach - 3 C 112/24
Court:	AG Lörrach (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 6(1)(a) GDPR Article 82(1) GDPR § 253 ZPO § 812(1) BGB
Decided:
Published:
Parties:
National Case Number/Name:	3 C 112/24
European Case Law Identifier:	ECLI:DE:AGLOERR:2024:1028.3C112.24.00
Appeal from:
Appeal to:	Unknown
Original Language(s):	German
Original Source:	Landesrecht BW (in German)
Initial Contributor:	la

A court held that in a lawsuit the same claim cannot be based on non-material damages under Article 82(1) GDPR as well as unjust enrichment alternatively. This makes the claim inadmissible.

English Summary

Facts

The data subject used the social network operated by the controller. Until 07 November 2023 it’s service was free of cost. After that, the controller explicitly demanded a consent for personalised advertisement. The data subject consented and did not opt for the payment model that would have allowed using the platform without consenting to the advertisement (“pay or okay”).

For the time before his consent, the data subject claimed €1,500 in non-material damages alleging that, without consent, the processing of his personal data for advertisement purposes had been illegal.

He alternatively based his claim on what the court refers to as a reversed licence analogy: Before consenting to personalised advertisement, the data subject had used the social network for 66 months. Referring to the post 2023 payment model’s monthly cost of €20, the data subject claimed 66 * €20 = €1,320 in unjust enrichment.

Holding

The court held that the claim based on two different legal bases was too vague and therefore inadmissible under § 253(2)(2) German Civil Process Order (Zivilprozessordnung – ZPO). This is due to the fact that if the court decides by, e.g., granting the claim on the basis of unjust enrichment, there would be no decision on the non-material damages. Therefore, the controller couldn’t determine if the data subject would sue again. This happens, when one claim is based on two matters of dispute rather than two legal bases for the same claim. The court held that non-material damages and unjust enrichment claims were two matters in dispute since the claimed damage is non-material while the claimed unjust enrichment is about a material amount of money that allegedly is still within the assets of the controller.

Both are two different things: A damage of the data subject does not necessarily correspond with a material enrichment of the controller and, vice versa, an unjust enrichment of the controller does not necessarily correspond with a damage of the data subject.

To make the claim admissible, the data subject would have at least needed to give a priority of legal bases the claim would be based on.

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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.

## Guiding Principle

If, in a single payment request, compensation for non-material damage is demanded and at the same time an appropriation of material enrichment is demanded, this constitutes an inadmissible alternative accumulation of actions.

## Tenor

1. The action is dismissed.

2. The claimant shall bear the costs of the legal dispute.

3. The judgment is provisionally enforceable. The claimant can avert enforcement by the defendant by providing security in the amount of 110% of the amount enforceable under the judgment, unless the defendant provides security in the amount of 110% of the amount to be enforced before enforcement.

## Order

The value of the subject matter of the dispute is set at €6,500.00.

## Facts

1. The parties are in dispute over claims arising from data protection violations.

2. The defendant operated the online social network "..." and the social media platform "..." in the European Union and offered services, inter alia, via "...", which were free of charge for private users until 07.11.2023. The claimant was registered with the defendant under the email address "..." and "..." and used these in particular to communicate with friends, share private photos and for discussions with other users. The defendant displayed personalised advertising for the claimant. By 08.11.2023 at the latest, the defendant demanded an express and comprehensive consent from the defendant for this, as the claimant's data was used for this purpose. The claimant gave consent for one account. He has not used the other account at least since then. The claimant never switched to the paid model after 07.11.2023, where one does not receive any advertising. He continued to use the defendant's services with personalised advertising.

3. The claimant submits that he has suffered damage in the amount of €1,500. The defendant has been enriched by a value of €1,320 based on a reverse licence analogy. Based on a licence to be purchased, €20 per month should be assumed, because the service can now also be purchased for this amount. On this basis, the claimant can claim 66 months, i.e. €1,320.

4. The claimant submits in legal terms: The claimant's claim arises from Art 82 GDPR, national claims for damages and a claim from unjust enrichment. The defendant's data processing for the purpose of displaying personalised advertising was carried out in breach of data protection law, because no express consent had been obtained until 07.11.2023. The fact that the defendant's conduct was in breach of data protection law is already evident from the decision of the ECJ C-252/21. The data processing was not necessary for the performance of the contract and it did not serve overriding interests. The claimant's damage lies in the fact that the data was processed without authorisation in order to display targeted advertising. Furthermore, the damage lies in the fact that data protection profiling was carried out. The claimant's non-material damage is to be quantified at €1,500. This amount is appropriate because of the publication of the personal data and because of the aggravating circumstances of the case. Furthermore, the GDPR was deliberately circumvented. Furthermore, the commercial values of the personal data are to be taken into account. Furthermore, the preventive purpose is to be taken into account. Furthermore, a claim also arises from the national claims for damages and the claim for surrender of enrichment from unjust enrichment. The amount of the unjust enrichment is derived from a fictitious licence fee.

5. The claimant requests,

6. 1. The defendant is ordered to pay the claimant compensation for non-material damage, the amount of which is at the discretion of the court, but should not be less than €1,500.00, plus interest at the rate of 5 percentage points above the base interest rate since the commencement of the action.

7. 2. The defendant is ordered to delete the personal data collected on the claimant's usage behaviour between 25.05.2018 and 02.11.2023,

8. a. insofar as the data is processed exclusively for advertising purposes,

9. b. to restrict the processing to purposes other than advertising purposes, insofar as the data is necessary for the use of the platform.

10. The defendant requests,

11. that the action be dismissed.

12. The defendant submits that claim no. 2 is an inadmissible alternative accumulation of actions. The data processing was not carried out in breach of data protection law. The defendant has consistently obtained consent for the following data processing:

13. - Advertisements based on information from advertising partners on user activities.
- When using data that the defendant receives from third parties about a user's activities on the third parties' websites or apps or during other offline interactions (i.e. third-party data according to para. 16 of the statement of defence) to display ads for the specific user.
- Data transmitted at the user's instruction.

14. Data that directly personally identifies users (information such as users' names or email addresses that can be used directly to contact or identify users) would be transmitted to advertisers if users instruct the defendant, for example, to share their contact information with advertisers so that they can contact users with further information about advertised products or services. Moreover (especially usage data through the use of "..." and "...") the defendant has permissibly relied on the necessity for the performance of the contract before 05.04.2023 and on the overriding legitimate interests from 05.04.2023 until the beginning of November 2023.

15. There is no proof of service of the claim in the court file. The defendant announced its intention to defend on 17.04.2024.

16. The main hearing took place on 23.09.2024. Reference is made to the minutes.

## Reasons for the Decision

17. A) The action is only admissible with regard to claim no. 2 and inadmissible with regard to claim no. 1.

18. I) The Local Court of Lörrach has jurisdiction.

19. 1) The international jurisdiction of the German courts arises from Art. 79 (2) sentence 2 GDPR, because the claimant can optionally sue in the courts at his place of residence.

20. 2) After the defendant's unchallenged submission following the reference to Section 504 of the Code of Civil Procedure, subject-matter jurisdiction arises from Section 39 of the Code of Civil Procedure, although the Regional Court would have subject-matter jurisdiction according to Sections 23; 71 of the Courts Constitution Act with a value of the subject matter of the dispute of €6,500.

21. 3) The local jurisdiction of the Local Court of Lörrach arises from Section 44 (1) sentence 2 of the Federal Data Protection Act. According to this, domestic law stipulates that the claimant can also bring an action within the scope of the GDPR before a court at his habitual residence (for details, see: Higher Administrative Court Kassel, decision of 01.12.2022 - 10 B 1898/22, BeckRS 2022, 39739).

22. II) Claim no. 2 is not an inadmissible alternative accumulation of actions (Federal Court of Justice GRUR 2011, 521; to the contrary: Stein/Roth, 23rd edition 2016, Code of Civil Procedure Section 253 para. 55). In the case of alternative accumulation of actions, a uniform legal request is based on different causes of action (Federal Court of Justice GRUR 2011, 521, para. 8). It must be specified in which order the causes of action are to be examined (Federal Court of Justice GRUR 2011, 521, para. 10). The considerations of the Federal Court of Justice do not only relate to industrial property rights (Federal Court of Justice GRUR 2011, 521, para. 10), but also to general considerations, namely to the legal principle of equality of arms (Federal Court of Justice GRUR 2011, 521, para. 11). Furthermore, the Federal Court of Justice has already applied this case law to other areas of law (Federal Court of Justice NJW 2018, 1259; Federal Court of Justice, decision of 27.11.2013 - III ZR 371/12, BeckRS 2014, 1621).

23. However, this is much more a case of cumulative accumulation of actions. Two different claims are asserted, each of which relates to different data, namely data that is only necessary for personalised advertising and data that is also necessary for the use of the defendant's services. These are two different requests that are pursued independently of each other. This application has not yet been objected to in the case law of other instances (cf. Regional Court of Regensburg, final judgment of 15.04.2024 - 75 O 1040/23, GRUR-RS 2024, 11690; Regional Court of Stuttgart, judgment of 23.04.2024 - 55 O 74/23, GRUR-RS 2024, 11761; Regional Court of Stuttgart, judgment of 25.04.2024 - 55 O 104/23, GRUR-RS 2024, 11758; Regional Court of Magdeburg, judgment of 29.02.2024 - 10 O 530/23, GRUR-RS 2024, 8057).

24. III) Claim no. 1, on the other hand, is an inadmissible alternative accumulation of actions and thus the application is too indefinite (Section 253 (2) no. 2 Code of Civil Procedure) and inadmissible.

25. 1) With regard to the case law of the Federal Court of Justice on alternative accumulation of actions, reference is made to the above (A) II)).

26. 2) Claim no. 1 is based on two different causes of action as a single request. The €1,500 is claimed once as non-material damage within the framework of Art. 82 GDPR and the national claims for damages and once as surrender of enrichment from unjust enrichment. The enrichment and the damage are two different objects of the claim, which is why there is an alternative accumulation of actions.

27. a) If the court now decides exclusively on the enrichment and omits the examination of the damage (or vice versa), because this would already justify the claim, then there would be no decision on the claim for damages and the defendant would remain uncertain whether the claimant can or will raise the undecided object of the dispute in further proceedings (Federal Court of Justice GRUR 2011, 521, para. 12). Thus, the defendant would be at the mercy of the court's arbitrariness as to which claim is examined. This would not be a sufficiently definite claim within the meaning of Section 253 (2) no. 2 Code of Civil Procedure. (Confirming this case law, e.g.: Federal Court of Justice in Official Collection of Decisions 211, 189; Federal Court of Justice NJW 2023, 1361) This is inadmissible if two different objects of the dispute exist, because then it is unclear what is actually being decided or has been decided.

28. The court comes to the conclusion that there are two different objects of the dispute with regard to the legal consequence sought. On the one hand, non-material damage is claimed as compensation, and on the other hand, the surrender of (material) enrichment is claimed from a claim in restitution. The non-material damage is based on the person of the claimant. The unjustified enrichment is a material value which is said to have remained with the defendant. The claimant's damage does not necessarily have to be accompanied by an enrichment of the defendant. An enrichment of the defendant does not necessarily have to be accompanied by damage to the claimant. Thus, two different sets of facts are presented with a single payment request. In order for this to be a sufficiently definite claim, the claimant would have had to specify an order in which the court should have examined the various claims.

29. b) The claimant has it in his hands to determine an order by filing auxiliary applications. He was advised of this at the oral hearing and did not change his application.

30. c) In contrast to the case law of the Federal Court of Justice in GRUR 2011, 521, the literature proposes the topos of alternative justification of the claim, according to which the action for payment is justified with two independent causes of action, but the claimant can only claim the amount in dispute once. This is supposed to be admissible and does not contradict the case law of the Federal Court of Justice, because in this case there is only one object of the dispute. (MüKoZPO/Becker-Eberhard, 6th edition 2020, Code of Civil Procedure Section 260 para. 25-27) However, such an alternative justification of the claim does not exist here. This is already evident from the fact that the two causes of action do not pursue the same action for payment. €1,500 is claimed as damages and no exact amount is claimed from unjustified enrichment, but only an amount of €1,320 (the claimant's consideration of the reverse licence analogy) is apparent from the statement of claim as justification. Although the claim attempts to show that it is supposed to be the same thing, it is already clear from the different amounts that it is not the same payment request that is only being made once. The claimant himself assumes that even if the surrender of the enrichment in the amount of €1,320 is awarded, a further claim for damages in the amount of €180 must exist. However, it remains unclear how these two claims relate to each other and whether the damage would be reduced by awarding the surrender of the enrichment. Conversely, it remains unclear whether, if damages in the amount of €1,500 are awarded, an unjustified enrichment remains, because the damage according to Art. 82 GDPR refers to very personal non-material damage of the claimant, which does not necessarily have anything to do with the proposed reverse licence analogy.

31. d) Insofar as a threefold calculation of damages is recognised in case law in the case of infringement of personality rights (Federal Court of Justice NJW 2000, 2201) and can refer to the specific damage, the licence analogy or the infringer's profit, one could durchaus assume a uniform object of the claim which is merely based on different legal grounds. However, the threefold calculation of damages concerns material damage (relating to intangible goods) (Dreier/Schulze/Specht-Riemenschneider, 7th edition 2022, Copyright Act Section 97 para. 79). However, the claimant is claiming non-material damage in the present case. The threefold calculation of damages cannot be applied to this. The claimant's non-material damage must be strictly separated from a material enrichment of the defendant, as shown above.

32. B) Insofar as the action is inadmissible, no decision may be made on the merits (Federal Court of Justice NJW-RR 2018, 974, para. 15).

33. C) Insofar as the action is admissible, it is unfounded.

34. There is no claim for deletion or restriction of processing. The claimant merely relies on an unlawful processing of his data, which is now, however, lawful with regard to the account used (I) and no longer takes place at all with regard to the unused account (II).

35. I) With regard to the account that the claimant continues to use, consent has now been given. The defendant asserts an unlawful processing of the data according to Art. 17 (1) lit. d) GDPR. However, such a claim is not justified by originally unlawful data processing that has subsequently become lawful. The decisive factor is whether the data is processed unlawfully at the time of the request for deletion. (BeckOK DatenschutzR/Worms, 49th edition 01.08.2023, GDPR Art. 17 para. 43). Originally unlawful data processing without the consent of the data subject can become lawful through the subsequently granted consent (permission). (Simitis/Hornung/Spiecker gen. Döhmann, Data Protection Law, GDPR Art. 17 para. 15, beck-online; Kühling/Buchner/Herbst, 4th edition 2024, GDPR Art. 17 para. 28a) Due to the subsequent consent, there is a legal basis for data processing according to Art. 6 (1) lit. a) GDPR. The deletion of the processing also only relates to the future. Since there is a legal basis for the future, the claim cannot exist either.

36. These statements also apply to the claim arising from Art. 18 (1) lit. b) GDPR.

37. To the same effect: Regional Court of Regensburg, final judgment of 15.04.2024 - 75 O 1040/23, GRUR-RS 2024, 11690; Regional Court of Stuttgart, judgment of 23.04.2024 - 55 O 74/23, GRUR-RS 2024, 11761; Regional Court of Stuttgart, judgment of 25.04.2024 - 55 O 104/23, GRUR-RS 2024, 11758; Regional Court of Magdeburg, judgment of 29.02.2024 - 10 O 530/23, GRUR-RS 2024, 8057.

38. II) With regard to the account that the claimant no longer uses, there is indeed no subsequent consent. However, the data from this account is undisputedly no longer used. Thus, there can be no unlawful use of the data at the time of the last oral hearing in this case either. Therefore, the claim does not exist in this respect either.

39. D) The decision on costs follows from Section 91 of the Code of Civil Procedure, because the claimant has lost in all respects.

40. E) The pronouncement on provisional enforceability is based on Sections 708 no. 11; 711 of the Code of Civil Procedure.

41. F) The value of the subject matter of the dispute of claim no. 1 is €1,500. The value of the subject matter of the dispute of claim no. 2 is estimated at €5,000 according to Section 23 (3) sentence 2 of the Lawyers' Fees Act (cf. Regional Court of Regensburg, final judgment of 15.04.2024 - 75 O 1040/23, GRUR-RS 2024, 11690; Regional Court of Stuttgart, judgment of 23.04.2024 - 55 O 74/23, GRUR-RS 2024, 11761; Regional Court of Stuttgart, judgment of 25.04.2024 - 55 O 104/23, GRUR-RS 2024, 11758; Regional Court of Magdeburg, judgment of 29.02.2024 - 10 O 530/23, GRUR-RS 2024, 8057).