LG Hannover - 13 O 129/21

LG Hannover - 13 O 129/21
Court:	LG Hannover (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 6(1) GDPR Article 82(3) GDPR § 28a BDSG a.F. §4 Abs. 1 BDSG a.F.
Decided:	14.02.2022
Published:	14.02.2022
Parties:
National Case Number/Name:	13 O 129/21
European Case Law Identifier:
Appeal from:
Appeal to:	Unknown
Original Language(s):	German
Original Source:	OpenJur (in German)
Initial Contributor:	Florian Wuttke

A mobile phone provider submitted a negative entry for unpaid bills to a credit reference agency. The data transfer was held unlawful under section 28a BDSG a.F.. The credit reference agency is ordered to pay the data subject € 5,000.00 in damages.

English Summary

Facts

The defendant is a credit reference agency. The data subject entered into a contract with a mobile phone provider under the address of his parents. The mobile phone was used by the data subject's brother. During the term of the contract, the mobile phone provider was unable to debit an amount due and sent debt collection letters to the registered address. However, the data subject was no longer resident at the address given. The debt was then settled in the short term, but the mobile phone provider terminated the contract and submitted a negative entry in the defendant debt register. One year later, the data subject demanded the defendant to delete the debt marker from the register and requested the mobile phone provider to withdraw the entry from the defendant. The defendant refused the deletion. The mobile phone provider refused to withdraw and referred to their entitlement to submit the entry, as the debt had not been paid initially and two debt collection letters had been sent. Subsequently, the data subject successfully sued for the deletion of the debt marker. However, the defendant failed to delete the marker. Three months after the judgement, the data subject again requested the defendant to delete the entry, which was then finally removed.

The data subject then claimed damages for material and non-material damages. The defendant submitted that the claim for damages be dismissed, as the submission of the negative entry and the debt marker had not been unlawful. Moreover, the plaintiff had not proven any causal damage.

The incident occurred partly before the introduction of the GDPR. The facts of the case were therefore partly assessed on the old version of the German Data Protection Act (BDSG a.F.).

Holding

The debt marker initiated by the mobile phone provider unlawfully violated the data subject's general right of personality. The defendant is ordered to pay the data subject €5,000.00 in damages.

Pursuant to section 4 (1) BDSG a.F., the collection, processing and use of personal data is only permissible if the BDSG a.F. or another legal provision allows or orders it or if the data subject has consented. In the present case, section 28a BDSG a.F. could be a legal basis for the transfer. The burden of proof for the lawfulness of the data transfer under section 28a (1) BDSG a.F. is generally borne by the transferor or the transferee. [23] However, according to the meaning and purpose of section 28a (1) No. 4 lit. a) to c) BDSG a.F., a mere sending of reminders is insufficient; rather, access by the data subject is fundamentally required in order to fulfil the intended warning function and thus either to enable data subjects to settle the claim or to enable them to raise objections to the claim. [24]

Since in the present case, debt collection letters were sent to the data subject at an address that was not current, it cannot be determined whether they were actually received by the data subject. It was irrelevant that the data subject himself caused the undeliverability. In the view of the negative consequences for the data subject, the court believed that it would have been reasonable for the mobile phone provider to provide proof of delivery by selecting an adequate delivery method. The transfer of personal data to the defendant was therefore unlawful under section 28a BDSG a.F. and constituted a violation of the data subject’s general right of personality.

Due to the unsuccessful delivery of reminders to the data subject by the mobile phone provider, the defendant also violated Art. 6(1) GDPR by unlawfully processing personal data. [25] Initially, the defendant was not obliged to examine the lawfulness of the mobile phone provider’s submission. However, after the data subject communicated that he had not been reminded in accordance with section 28a BDSG a.F., the defendant would have been obliged to examine the lawfulness of the debt markers. "The due diligence incumbent on [the defendant] would have required them to do so and the defendant have since acted at least negligently as long as they did not do so." [31]

The data on a data subject's creditworthiness is sensitive data and worthy of protection. The debt markers were accessed on several occasions. The court concluded that the unlawful disclosure of such personal data is associated with "exposure" and constituted a violation of personality. The data subject has therefore suffered immaterial damage. "The violation of the data subject's right of personality justifies and requires the payment of damages for pain and suffering in the amount of €5,000.00." [35]

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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.

   LG Hanover, judgment of February 14, 2022 - 13 O 129/21




Source openJur 2022, 3734 Rkr:  AmtlSlg: 

 Civil LawPrivacy Law


tenor
 1
  1. The defendant is sentenced to pay the plaintiff €5,000.00 plus interest at a rate of five percentage points above the

  Base interest rate to be paid since April 9th, 2021.
 2
  2. The defendant is ordered to release the plaintiff from pre-trial legal fees of €282.15.

 33. Otherwise the action is dismissed.

 44. The plaintiff bears 71% of the costs of the legal dispute and the defendant bears 29%.

 5
  5. The judgment is provisional against security of 110% of the amount to be enforced
  enforceable.


facts
 6
  The parties are arguing about compensation for pain and suffering due to a negative entry at the expense of the plaintiff in the credit agency
  defendants.

 7
  The plaintiff had a relationship with Telekom Deutschland GmbH (hereinafter: Telekom) at the registration address of his parents
  signed a mobile phone contract that his brother used. In November / December 2017 the due

  Amounts from the contractual relationship are not debited by Telekom. The plaintiff was already residing at that time

  no longer with his parents. Telekom caused a negative entry in January 2018 because of the claims

  at the defendant (reference is made to Appendix K1 in the appendices for the plaintiff). As of April 2018, the
  Telkom the contract. During a visit to his parents in March 2018, the plaintiff found out from a

  Debt collection letter from the claim. In April 2018, the plaintiff settled the claim. In April 2019 he got in touch

  to the defendant to have the negative entry deleted. The defendant rejected this in a letter dated April 12, 2019

  (Reference is made to Annex K2 in the appendix volume of the plaintiff) and pointed out that the address "... Berlin"

  been confirmed
 8th
  Postal returns, however, were not recorded. With a letter from a lawyer dated June 28, 2019, the plaintiff

  request Telekom and the defendant to delete or revoke the data report (on Annexes K3 and K4
  reference is made to the plaintiff's annexes). Telekom rejected this in a letter dated July 3, 2019 with a note

  on the authorization to enter, since the claim was initially not paid (on Annex K5 in

  Appendices to the plaintiff are referred to). She also referred to two reminder letters dated November 27, 2017 and

  13.12.2017. In a letter dated July 12, 2019, the defendant refused to delete the entry (on Annex K6 in
  Appendices to the plaintiff are referred to). With a statement of claim dated May 28, 2020, the plaintiff filed with the regional court

  Hanover filed an action for the deletion of the negative entry, in which the acknowledgment judgment of January 25, 2021 - 13 O 133/20 -

  was enacted. Since the negative entry was still saved on March 4th, 2021 (on attachment K7 in the attachment volume

  Plaintiff is referred to), the plaintiff left the defendant with a letter dated March 9th, 2021 to fulfill the

  request a judgment of acknowledgment. In a letter dated March 15, 2021, the defendant informed that the deletion had been made
  may be; it was no longer included in information from September 7th, 2021 (reference is made to Annex K17 in the Annex volume of the plaintiff

  taken). In a letter dated March 23, 2021, the plaintiff requested damages from the defendant totaling

  €17,500.00, the payment of which the defendant made in a letter dated April 9, 2021 (on Annex K12 in the annex volume

  Plaintiff is referred to) refused.

 9The parties are in dispute as to whether and to what extent loans were not granted or not granted as a result of the entry

  as they would have been granted without this entry.

10The plaintiff requests












        1. to order the defendant to pay appropriate damages, the amount of which is within the obligatory,11
        1. to order the defendant to pay reasonable damages, the amount of which is within the obligatory
        discretion of the court, but at least EUR 1,000.00 plus interest of 5 percentage points

        above the base interest rate since April 9, 2021 for the period from January 10, 2018 to April 12, 2019,



        2. to order the defendant to pay reasonable damages, the amount of which is within the obligatory

        discretion of the court, but at least EUR 9,500.00 plus interest of 5 percentage points
        above the base interest rate since April 9, 2021 for the period from April 13, 2019 to January 25, 2021,



        3. to order the defendant to pay reasonable damages, the amount of which is within the obligatory

        discretion of the court, but at least EUR 7,000.00 plus interest of 5 percentage points

        above the base interest rate since April 9, 2021 for the period from January 26, 2021 to March 15, 2021,


        4. Condemn the defendant, the plaintiff from the remaining remainder of the accrued extrajudicial

        Business fee according to §§ 13, 14 No. 2300 W RVG in the amount of 711.03 euros plus 5 percentage points above

        exempt base interest rate since pendency.

12The defendant requests that

13 to dismiss the lawsuit.

14
  The defendant is of the opinion that the entry was not illegal because the reminders from Telekom

  sent to the plaintiff's parents and thus reached him without his knowledge. In addition, the plaintiff
  no causal damage proven. After all, the defendant did not meet any until the recognition judgment

  Fault, she could have assumed that Telekom's entry was lawful.


reasons
15
  I
16
  The admissible claim is only partially founded.

17A. The lawsuit is admissible, in particular the district court of Hanover is locally responsible according to §44 paragraph 1 BDSG.

18B. The action is to be filed in the amount of €5,000.00 (below to 1.) plus interest on arrears (below to 2.)

  as well as with regard to the exemption of the plaintiff from pre-trial legal fees in the amount of €282.15

  (below to 3.) justified. For the rest, the action is to be dismissed (in the following to 4.).

19In detail:

201. The plaintiff can demand damages from the defendant in the amount of €5,000.00 based on Article 82(1) GDPR.

21
  a. The negative entries made by Telekom from January 10, 2018 unlawfully have the plaintiff in his

  violated general personality rights.
22
  One that does not differ from the provisions of §28a BDSG, which is still relevant at the time of the negative entry

  (Art. 6 para. 1 letter f GDPR (in conjunction with §31 BDSG n.F.) applies, whose Art. 99 para. 2 is covered from May 25th, 2018).
  Transmission of personal data constitutes a violation of the general right of personality

  other right within the meaning of § 823 Para. 1 BGB enjoys protection (BGH, judgment of 07.07.1983-III ZR 159/82-, para. 14,

  legal OLG Düsseldorf, judgment of 09/12/2014- 1-16 U 7/14-, para. 5, juris). According to §4 paragraph 1 BDSG old version, the collection

  Processing and use of personal data is only permitted insofar as the BDSG or another legal regulation

  allows or orders this or the person concerned has consented. The plaintiff did not give his consent. Because of this

  is the transmission of the data from the contractual relationship between the plaintiff and Telekom to the defendant at §
  28a BDSG old version. In the present case, their admissibility already fails due to the prerequisite of §28a para. 1 sentence

  1 No. 4 letter a) BDSG a.F., because it cannot be determined that Telekom sent the plaintiff at least twice

  warned in writing.

23The burden of explanation and proof of the admissibility of the transmission of data is borne by the transmitting party

  (cf. Cologne Higher Regional Court, judgment of October 21, 2014 - 1-15 U 107/14-, para. 59, juris; Düsseldorf Higher Regional Court loc.cit., para. 5; LG

  Lüneburg, judgment of July 14, 2020 - 9 O 145/19 -, paras. 31, 47) resp. in this case the defendant as the data

  processing body within the meaning of Section 29 (1) sentence 1 no. 3 BDSG old version. The defendant also relies on the reminders
  as a fact favorable to her - because it entitles her to include the negative entry in her credit agency - and thus contributes

  also according to general principles the burden of proof (cf. Arnold in: Erman, BGB, 16th edition 2020, § 130 BGB,

  paragraph 33).



  To the extent that Telekom sent reminders to the plaintiff at his address that was no longer current for him (only),24 To the extent that Telekom sent reminders to the plaintiff at his address that was no longer current for him (only)

  sent to his parents, it is not possible to determine whether the plaintiff received them, regardless of whether they were the parents

  of the plaintiff have been received. Due to his behavior, the plaintiff does not like his new address at his

  to have informed the contractual partner, to have caused the mail addressed to him and thus
  the reminders have not reached either. But that doesn't change the fact that the plaintiff has no access

  can be determined and is initially irrelevant to the question of the admissibility of the data processing. According to the sense and

  The purpose of the requirements set out in Section 28 a (1) sentence 1 no. 4 letters a) to c) BDSG is sufficient

  sending reminders; rather, access to the person concerned is required in principle in order to
  to fulfill the intended warning function and thus either enable the claim to be settled or him

  to enable them to raise objections to the claim (cf. BR-Drs. 548/08, p. 25 f.); is responsible

  also solely to the sender proof of receipt of letters sent by him, which through him a suitable

  could ensure transit procedures; that would be with regard to the consequences of a negative entry with regard to
  the creditworthiness of the person concerned is also readily reasonable and the person issuing the reminder bears the risk if he does so

  subject to the possibility of proof; Even prima facie evidence does not apply in principle because it

  There can be multiple reasons why a letter does not reach the recipient (cf. OLG Köln, loc.cit., para. 59,

  legal).
25
  b. The defendant has against Art.6 Para. 1 DSGVO by not lawful data processing within the meaning of the regulation
  violated because these are measured against §§ 28a Paragraph 1 No. 4 Letter a), 29 Paragraph 1 Clause 1 No. 3 BDSG old version or § 31 Paragraph 2

  No. 4 letter a) BDSG new version (even if this new version no longer defines the transmission requirements,

  but only requirements for the data set that is used to determine probability values

  may be, the transmission requirements are thereby determined at least indirectly and in
  To a certain extent updated by the legislature, cf. Kamlah in: Plath, DSGVO/BDSG, 3rd edition 2018, §31 BDSG,

  49) was not lawful due to the lack of (proven) warnings from the plaintiff by Telekom.

26c. Insofar as the plaintiff's personality rights have been violated, there is no need to establish that this is

  is a serious one.

27In contrast to the granting of compensation for pain and suffering according to Sections 823 (1), 249, 253 BGB, Art 1 and 2 GG, a

  those of Art. 82 GG not required (cf. (BeckOK DatenschutzR/Quaas, 38th Ed. 1.11.2021, DS-GVO Art.82 Rn.

  32; Gola DS-GVO/Gola/Piltz, 2nd edition 2018, DS-GVO Art. 82 para. 13; LG Hamburg, judgment of September 4th, 2020 -324 S 9/19 -,

  Paragraph 34, juris; LG Lüneburg, loc.cit., para. 55, juris).
28
  i.e. The defendant also acted at fault.

29 Such fault is - as the Chamber already shows in the opinion of Art. 82 (3) GDPR - also within the scope

  liability according to Art. 82 GDPR is required and is initially assumed with the possibility of exculpation (cf.
  OLG Stuttgart, judgment of March 31, 2021 - 9 U 34/21 -, para. 43, juris; LG Karlsruhe, judgment of August 2nd, 2019-8 O 26/19-, Rn.

  15, juris; Gola DS-GVO, loc.cit., para. 9; BeckOK DatenschutzR, loc.cit., para. 17; a.A. probably: BAG, ECJ submission from

  August 26, 2021 - 8 AZR 253/20 (A) -, para. 39, juris).

30 Measured against this, the defendant was initially not accused of school behavior, because the examination of the

  The prerequisite for the transmission in Section 28a (1) sentence 1 no. 4 letter a) BDSG old version was initially not incumbent (cf. LG

  Stuttgart Urt. May 15, 2002 - 21 O 97/01, BeckRS 2002, 31212889, beck-online). The defendant therefore did not have to do without
  check any indication as to whether the plaintiff after the due date of Telekom's claim at least

  had been reminded twice in writing, but could rather rely on Telekom as

  transmitting body had done so.

31 However, the defendant then had reason to examine this question after the plaintiff informed her in April 2019 that

  that he had not been warned, so the prerequisites for the negative entries - at least from his point of view - were not
  Templates. As far as they lack of knowledge of the problem of the reminders and their access to the plaintiff because of that

  up to that point in the sense of Art. 82 Para

  April 2019 no longer and the fault of the defendant since then can be assumed. The defendant had from April 2019

  occasion to examine the question of legality. The diligence incumbent on her would have required that and the defendant
  acted at least negligently since then, as long as she did not do so.

32
  e. The plaintiff also suffered non-pecuniary damage.






  It can be left open as to whether, even taking into account the broad concept of damage (cf. recital 146),33It can be left open as to whether not, even taking into account the broad definition of damage (cf. recital 146).

  already every breach of the GDPR leads to an obligation to compensate, because the obligation to compensate a

  immaterial damage must be countered by a nameable and, in this respect, actual personal injury

  (LG Hamburg, loc.cit., para. 33 f., juris). Because at least one in an unlawful disclosure of data
  lying "exposure" represents such a (cf. LG Hamburg, loc.cit.; LG Karlsruhe, loc.cit., para. 19, juris; LG

  Lüneburg, loc.cit., para. 55; Ehmann/Selmayr/Nemitz, DS-GVO, 2nd edition, Art. 82 para. 13).

34 The defendant measured the data associated with the negative entries by their contract partners for retrieval

  ready and thereby "exposed" the plaintiff. The defendant is a protective association for

  general credit protection, a warning system of the credit industry whose task it is to inform its contractual partners

  provide information to protect them against losses in the credit business with natural persons
  (cf. OLG Düsseldorf, judgment of February 13, 2015 - 1-16 U 41/14 -, para. 28, juris). Within this system, the

  The defendant not only made the data available, according to the information from March 4th, 2021, they were also made available

  repeatedly and both in the context of private inquiries and in relation to the plaintiff's activity as the owner of a

  Physiotherapy practice retrieved. On whether the negative entries also meant that the plaintiff had no credit or
  such was granted under different (worse) conditions than would have been granted without the entries,

  however, the immaterial claim for compensation is irrelevant.

35f. The violation of the plaintiff's personality rights justifies and requires the payment of compensation for pain and suffering

  in the amount of €5,000.00.

36aa. For immaterial damages according to Art. 82 GDPR, those developed within the framework of §253 BGB apply

  general principles (BeckOK DatenschutzR/Quaas, loc.cit., para. 31; Gola DS-GVO, loc.cit., para. 9). Therefore can

  also the contributory negligence of the person concerned analogous to § 254 BGB in the assessment of the amount of damages
  be taken into account (cf. BeckOK DatenschutzR/Quaas, loc.cit., para. 28; Ehmann/Selmayr/Nemitz, loc.cit., para. 15; loc.cit.

  probably Kühling/Buchner/Bergt, 3rd edition 2020, GDPR Art. 82; BAG, loc.cit.).

37bb. In the present case, the violation of the defendant justifies, taking into account all the circumstances of the present

  In individual cases, compensation for pain and suffering in the amount of €5,000.00.

38(1) The data on the plaintiff's creditworthiness are sensitive data that are worthy of protection and relate both to his professional activity and to

  also affect his creditworthiness in the private context. You can have a significant negative impact on the

  Participate in economic transactions in these areas by denied credit or sought by the plaintiff
  contracts cannot be concluded with him. That the defendant as a warning system of the credit industry with their

  information and the base score calculated for this purpose and on the basis of the entries (the -

  even if the algorithms for its formation are not known and the value is therefore not comprehensible - on

  April 25, 2019 to 55.2% (see Annex K1), on March 4, 2021 to €69.56 (see Annex K7) and on September 7, 2021 and therefore
  after deleting the negative entries amounted to 91.79%) exerts no influence on such things, one does not become serious

  can accept. This influence - without it being part of an intangible claim of the concrete

  determination of the material disadvantages - is also of some weight; the LG Lüneburg points this out correctly

  point out that this indirectly affects fundamental rights such as freedom of occupation and general freedom of action
  (LG Lüneburg, loc.cit., para. 58).

39
  (2) For the assessment of the compensation for pain and suffering, the negative entries are probably short until April 2019
  to be taken into account after March 4th, 2021 and thus lasted for about two years.

40
  (3) They also fell in a period that was already important for economic life due to the corona pandemic
  Participating was associated with major economic risks and problems, the plaintiff was therefore responsible for the consequences

  particularly susceptible to negative information.

41(4) In the present case, it must also be taken into account that the defendant is initially not at fault

  met, with increasing duration of the illegal situation from the first indications by the plaintiff in April 2019

  about the lawsuit being filed in May 2020, her doubts about the legality of her actions had increased
  have to pay. This applies in particular to the period after the acknowledgment judgment of January 25, 2021 and the

  The fact that the negative entries were still saved on March 4th, 2021.










  (5) Equally, it cannot be disregarded that the plaintiff made an entry leading to the negative entries,42
  (5) Equally, it cannot be disregarded that the plaintiff led to the negative entries
  caused himself. Because he didn't tell Telekom about his change of address, he gave her

  taken the opportunity to him with their reminders on the although in terms of proof of access

  risky, but at least quite common way of sending a simple letter. The behavior of

  Plaintiff's knowledge of the arrears suggests that it will then immediately settle the claims

  Telekom had come and the negative entries had not been launched.

43cc. After all this - as happened - a uniform compensation for pain and suffering is to be formed.

44 The calculation made by the plaintiff according to time periods is therefore not to be made. As far as one

  Assessment of compensation for pain and suffering after (two) periods can then exceptionally be carried out,

  if it is about the payment of capital on the one hand and a pension on the other (cf. BGH, judgment of 06/08/1976 - VI

  ZR 216/74 -, juris), such a payment is otherwise out of the question, especially in the case of a payment (only) of capital
  (cf. OLG Hamm, judgment of February 11, 2000 - 9 U 204/99 -, para. 17, juris; OLG Frankfurt, decision of April 14, 2020 15 W

  18/20 -, paragraphs 17 -18, juris; each with further information).

45
  2. The plaintiff can claim interest on arrears from April 10, 2019 on the basis of the defendant's letter of refusal dated
  04/09/2019 gladly. §§ 286 Para. 2 No. 3, 288 Para. 1 BGB require, whereby according to § 187 Para. 1 BGB the

  Interest does not begin to accrue until the day after default occurs (cf. Staudinger/Repgen (2019) BGB § 187, para.

  5; Grünberg-Ellenberger, Civil Code, 81st edition, marginal number 1 to Section 187 with further references).

463. Finally, the plaintiff is entitled to an exemption from the pre-trial proceedings required for legal prosecution

  legal fees. With an item value of €5,000.00 (the authorized part of the

  claim asserted out of court (cf. BGH, judgment of 18.07.2017 -VI ZR 465/16 -, para. 7, juris; BGH,

  Judgment of 12.12.2017 - VI ZR 611/16 -, para. 5, juris)), these amount to §§13 para. 1, in conjunction with Nos. 2300, 7002,
  7008 VV RVG to the appropriate 1.3 business fees plus flat-rate expenses and VAT

  A 0.65 business fee will be credited. Preliminary remark 3 para. 4 RVG, § 15a RVG, therefore to (€217.10 + €20.00

  + €45.05 =) €282.15.

474. Furthermore, the action is to be dismissed according to the above and because the plaintiff also requested the payment of

  Litigation or default interest on the out-of-court fees owed by him to his legal representatives

  Attorney's fees plaintiff cannot demand. Since he made the payment directly to his counsel

  requests, he asserts a claim for exemption in this respect. However, claims for exemption do not fall under Section 288

  BGB, as they establish obligations to act (Hager in: Erman, BGB, 16th ed. 2020, § 288 BGB, para. 6, with further references).
48
  II.

49The brief of the same received after the end of the hearing on January 21, 2022 on February 7, 2022

  Day gives no reason to reopen the hearing. § 156 ZPO.

50III.

51The decision on costs is based on Section 92 (1) ZPO, the decision on provisional enforceability

  is based on § 709 sentence 1 and 2 ZPO.