OLG Dresden - 4 U 760/19

OLG Dresden - 4 U 760/19
Court:	OLG Dresden (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 82(1) GDPR
Decided:	11.06.2019
Published:	n/a
Parties:	anonymous
National Case Number:	4 U 760/19
European Case Law Identifier:	n/a
Appeal from:	LG Görlitz (Regional Court)
Language:	German
Original Source:	Unfortunately, direct linking is not supported. Please enter the file number in the search form on the following page.

According to the Higher Regional Court of Dresden (Resolution of June 11, 2019), "minor damages" do not give rise to any claim for non-material damages under Article 82 GDPR.

English Summary

Facts

In that case, the Claimant brought an action against the deletion of a video from the 1970s that he shared in a social network where the word "negro" appeared several times. He also complained about having his account limited to "read only" mode for a few days (the exact duration is disputed between the parties).

Holding

With regard to Article 99(2) GDPR, the Court already expressed doubts as to whether Article 82 GDPR is applicable to the deletion/blocking that took place in March/April 2018, as this regarded a past and completed situation.

However, this point could be left open as for the Court, the video deletion and temporary account blocking was lawful under Article 6(1)(a) GDPR in connection with the terms of use of the network.

In any event, the Claimant did not suffer any non-material damages pursuant to Artcile 82(1) GDPR. Not every perceived discomfort without serious impairment of an individual's self-image or reputation may constitute such damage. Recital 146 to the GDPR, referring to "full and effective compensation", does not alter this finding. Otherwise, an almost "unconditional" right to non-material compensation would arise under data protection law.

Comment

The concept of "minor damages" seems to be specific to Germany. There is no basis for such a concept in GDPR. The German literature and judiciary still follows this national concept, which may be in violation of the GDPR.

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English Machine Translation of the Decision

The decision below is a machine translation of the original. Please refer to the German original for more details.

DECISION

1. The Senate intends to dismiss the applicant's appeal by order without an oral hearing

2. The plaintiff has the opportunity to comment within four weeks. However, he should also consider withdrawing the appeal.

3. The motion to suspend the appeal proceedings until the decision on the defendant's appeal against the judgment by default of the Regional Court Görlitz Exterior Chamber Bautzen of 22 March 2019 is rejected.

4. The Senate intends to set the amount in dispute in the appeal proceedings at € 5,150.


Reasons

A.

The applicant is bringing an action against the defendant for the deletion of an XXX post and the blocking of his account by transfer to read-only mode on 31 March 2008 for a declaration of unlawfulness, activation of the contribution, provision of information, material and non-material damages and reimbursement of extrajudicial lawyers' fees. Above the subtitle "Nüscht wie Neger" and with the comment "Those were the days when the now centrally controlled German state television still reported neutrally and showed such wonderful series. P.S.: I am curious when it will be deleted... but that would be a self-denying political act. he had shared a link to a film excerpt from the television series "Ein H..." (A H...) at www.xxx.com, which was broadcast in the 1970s and in which the word "Negro" is used several times. The Regional Court sentenced the defendant by default to reactivate the contribution and found that the deletion/blocking was illegal. Upon the defendant's admissible objection, it has scheduled a hearing for September 11, 2019. It rejected the remaining claims. The appeal, which in particular takes the view that the contribution is constitutionally protected as a permissible expression of opinion to such an extent that its deletion and the temporary blocking of the user account triggered extensive claims for information and damages, is directed against this.

B.

The Senate intends to reject the admissible appeal under § 522.2 of the Code of Civil Procedure without an oral hearing by a resolution adopted unanimously. The plaintiff's admissible appeal obviously offers no prospect of success in the case. Nor does the case have any fundamental significance, nor does the further development of the law or the securing of uniform jurisdiction require a decision by the court of appeal by means of a judgment. Nor do other reasons require an oral hearing. A suspension of the appeal proceedings pursuant to § 148 ZPO is out of the question. The proceedings before the Regional Court on the defendant's appeal against the default judgment of 22 March 2019 are not prejudicial. The claims asserted in the appeal do not exist even if the defendant's objection is rejected and the judgment by default should become final.

I.
The Regional Court rightly denied a claim by the plaintiff for information as to whether the ban imposed on him was imposed by a "commissioned company". In the absence of a special legal basis, such a claim for information can only be considered under § 242 BGB. According to the consistent case-law of the Federal Court of Justice, a right to information is given from the point of view of good faith if the legal relations existing between the parties mean that the party entitled to the claim is excusably uncertain about the existence or scope of his right and if the obligor is able to provide the information required to eliminate this uncertainty without difficulty (see Federal Court of Justice, judgment of 17 July 2002 - VIII ZR 64/01, NJW 2002, 3771 under II. 1. w.w.N.). Under these preconditions, a claim to the provision of information also exists if it is not the claimant himself who is the debtor of the main claim, but a third party, whose enforcement the auxiliary claim to the provision of information is intended to enable (Federal Court of Justice, judgment of 9 July 2015 - III ZR 329/14 - juris).
According to Section 24 (1) no. 1 BDSG, there are no data protection concerns regarding the provision of information if the provision of information is necessary for the assertion, exercise or defence of civil law claims. However, the general right to information in good faith is in turn limited by § 242 BGB. Its assertion is therefore abusive if the information is not relevant to the claim in question under any aspect or if the creditor requests it for "irrelevant purposes" (Staudinger/Olzen/Looschelders (2015) BGB § 242, marginal 608; Palandt-Grüneberg BGB, 78th ed. § 259 marginal 9; Soergel/M Wolf § 260 marginal 61 ff).
This is how it lies here. Even if one were to assume - for which the plaintiff, however, has not provided any evidence - that the deletion of the contribution in dispute was not carried out by employees of the defendant but by a service provider on its behalf, claims against the latter would not be considered from a legal point of view. The plaintiff could not assert claims under § 241 BGB in conjunction with the XXX usage contract or under § 280 BGB against this third party due to the lack of a special relationship under the law of obligations. Contrary to what the Munich Regional Court casually assumed in the final judgment of 21.12.2018 (28 O 5492/18) submitted by the plaintiff, claims under § 826 BGB are also excluded in such a case. Irrespective of the fact that it is not apparent what damage the plaintiff claims to have suffered here and what he would like to claim against the third party to be named, the claim under § 826 BGB presupposes in any case conduct that is objectively immoral and supported by a particularly reprehensible attitude. According to general opinion, this only includes conduct which, in terms of its content and overall character, violates the sense of decency of all those who think fairly and equitably, i.e. which is not compatible with the fundamental values of the legal and moral order (see instead of all Palandt-Sprau, loc. cit. § 826 marginal no. 4). The fact that a contractual obligation is violated by conduct is not sufficient for this.
Such an accusation cannot even be made by the defendant itself in connection with the deletion of the disputed mail. This is - like the Senate in accordance with the prevailing case law and literature (OLG Karlsruhe, decision of 25 June 2018 - 15 W 86/18 -, juris; OLG Munich, decision of 17 June 2018 - 15 W 86/18 -, juris; OLG Munich, decision of 17 June 2018 - 15 W 86/18 -, juris; OLG Munich, decision of 17 June 2018 - 15 W 86/18 -, juris; OLG Munich, decision of 17 June 2018 - 15 W 86/18 -, juris; OLG Munich, decision of 25 June 2018 - 15 W 86/18 -, juris; OLG Karlsruhe, decision of 25 June 2018 - 15 W 86/18 -, juris; OLG Karlsruhe, decision of 25 June 2018 - 15 W 86/18 -, juris; OLG Karlsruhe, decision of 25 June 2018 - 15 W 86/18 -, juris; OLG Munich, decision of 25 June 2018 September 2018 - 18 W 1383/18 -, juris; Elsaß/Labusga/Tichy, CR 2017, 234; further on Overblocking s. Holznagel, CR 2018, 369) has already decided (Senate order of 8 August 2018 - 4 W 577/18 -, juris), on the basis of the information provided by the complainant pursuant to §§ 305 et seq. BGB (German Civil Code), on the basis of their community standards in the version that is also applicable here, to delete and block contributions that fulfill the facts of the "hate message", provided that it is ensured that these sanctions are not arbitrarily set and that users are not blocked hastily and permanently. Whether this is the case is subject to an examination of the individual case. In view of the weighing up of the user's freedom of opinion and the public interest expressed in the Community Standards, which necessarily precedes such a decision, as well as the large number of checks and balances that have to be carried out daily for this purpose, it is obvious that not every deletion of a contribution can stand up to subsequent judicial review, especially since the Community Standards themselves are so broadly formulated that their content can sometimes only be determined by interpretation (e.g. hate speech, bullying and harassment). However, since the deletion of inadmissible contributions according to the Community Standards is not objectionable in principle, and the deletion of contributions with obviously illegal content within the meaning of the NetzDG is even mandatory for the operator under § 3 Paragraph 2 No. 1 NetzDG, the exercise of these powers does not constitute intentional immoral damage to the user concerned which could justify a claim under § 826 BGB, even if the measures taken should prove inadmissible in individual cases. A fortiori, such an accusation is not justified against a person who is used as a service provider by a social network and is therefore merely a vicarious agent in the sense of § 831 BGB, without, however, pursuing his own interests by deleting or blocking participants. The situation would be different if the defendant could be accused of systematically discriminating against individual users by misusing its formal legal status with the aim of ultimately excluding them from its network. However, nothing can be inferred from the plaintiff's submissions in this regard.

II.
Likewise, there is no claim to information about possible instructions "from the Federal Government or subordinate departments regarding the deletion of contributions and/or the blocking of users". The calls for action for operators of social networks triggered by the NetzDG can be found in the text of the law. No indication of any further influence in the specific individual case is claimed. The assumption that the Federal Government or another public administration body had influenced the defendant in order to block the plaintiff's mail, including the link contained in it to a section of an episode of "Ein H..." from the 1970s, is also obviously far-fetched and is more in line with conspiracy theories spread in relevant circles via the Internet. The assertion of a claim for information, with which a statement of the person claimed about allegations that are not substantiated by anything, is inadmissible as a case of abuse of rights.

III.
Finally, a claim for payment of €150 is also excluded regardless of whether the blocking/deletion proves to be lawful in the proceedings on the defendant's objection due to the statement in dispute. There is no basis for such a claim for payment.

1. The claim to immaterial monetary compensation derived from Article 1, 2.1 of the Basic Law does not apply to every violation of the general right of personality, and certainly not to every breach of contract. Rather, it presupposes a serious encroachment on the general right of personality, the impairment of which cannot be satisfactorily compensated for in any other way. The decision as to whether there is a sufficiently serious violation of the right of personality depends in particular on the significance and scope of the encroachment, also on the occasion and motive of the actor and the degree of fault on his or her part (Senate, judgment of 30 January 2018 - 4 U 1110/17 -, marginal no. 4, juris with further evidence). That the plaintiff should have suffered such an impairment through the deletion of the contribution and the temporary transfer of his account into the read-only mode (as evidenced by the judgment by default for two days, according to his assertion in the appeal for three days, and according to the defendant in the notice of appeal even only for 24 hours), he could not plausibly demonstrate; this also does not seem conceivable. The restrictions associated with the temporary exclusion from active use affect his right of personality at most in the expression of the social sphere. Since the barring is not publicly announced and, moreover, was not pronounced by a state authority but only by a legal subject of private law, there is seriously no need to fear any pillory effect. Also the plaintiff evaluates the immaterial loss going out from it with only 150, - € and gives thereby to recognize that he attaches no sufficient interference severity even to the behavior of the deplored ones. After the constant iurisdiction of the senate (senate aaO; judgement from 13 February 2018 - 4 U 1234/17 -, juris) the minimum lower limit for a monetary compensation lies with 2500, - ? Below this minimum lower limit, it is regularly to be assumed that the required sufficient severity of intervention has not been exceeded.

2. the plaintiff cannot assert claims for a fictitious licence fee from § 812 BGB either. Whether the defendant has actually used his personal data for advertising purposes during the period of the blockage can be questioned. For, in any case, according to his own statement in the statement of claim, the plaintiff had given his consent to the authority, as stipulated in the terms of use, to "permanently store and use" all contributions and data received. He had not declared a reservation for the period of any blocking. According to all this, there is no unlawful use of data protected by the general personal right. The necessary prerequisites are also lacking for a fictitious compensation for damages according to the principles of license analogy. For a claim for damages according to §§ 280, 241 BGB in conjunction with the contract of use, the statement in the statement of claim that the plaintiff had lost a sales transaction in the concrete case "due to the unusability of the short message service" is not sufficient.

3. Finally, the claims asserted under Art. 82 (1) DSGVO are also ruled out. Any person who has suffered material or non-material damage as a result of a breach of this Regulation is entitled to claim damages from the person responsible.

a) It is already doubtful in the present case whether Art. 82 DSGVO applies to the deletion that took place on 31.3.2018 and the blocking that ended on 1.4.2018 at the latest. Pursuant to Art. 99 (2) DS-GVO, this will only apply directly in all Member States from 25 May 2018. Although it follows from Article 99 in conjunction with Recital 171 sentence 3 of the DS-BER that it will apply without restriction from that date and that all processing operations which have already begun by that date are to be brought into conformity with the Regulation within two years of its entry into force (24 May 2016, cf. Article 99 (1) DS-BER), the Regulation does not apply to the processing of personal data. From this point on, the Regulation supersedes national laws in its scope of application (on priority, cf. expressly Section 1 (5) of the Federal Data Protection Act in the version of the Act on the Adaptation of Data Protection Law to Regulation (EU) 2016/679 and on the Implementation of Directive (EU) 2016/680 of 30 June 2017, Federal Law Gazette I, p. 2097; Federal Court of Justice, judgment of 12 July 2018 - III ZR 183/17 -, marginal no. 66, juris). The criterion for the review of claims for future actions is therefore the legal situation at the time of the last oral hearing (BGH loc. cit.). Unlike a claim to refrain from blocking or activating an account, however, the claim asserted here under Art. 82 DSGVO is linked to a past and completely closed case which occurred before the DSGVO came into force.

b) However, this may also not apply because the conditions for a claim under Art. 82 DSGVO are not met anyway. The deletion of the mail and the blocking of the plaintiff's account does not constitute a violation of mandatory provisions of the DSGVO. The collection and processing of his data, which according to Art. 4 No. 2 DSGVO also includes the deletion of the mail in dispute and the blocking of his account, is based - as explained - on the plaintiff's prior consent to the defendant's terms of use (Art. 6 para. 1 lit a DSGVO). This is not linked to the fact that the defendant also fulfils its contractual obligations and therefore also includes periods in which the account is blocked (also LG Köln, judgement of 24.1.2019, 24 O 201/18 of the cl. submitted as an attachment to the grounds of appeal). Moreover, the Senate cannot recognize that the plaintiff would have suffered material or immaterial damage within the meaning of Art. 82 DSGVO 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 DSGVO (Wybitu/Haß/Albrecht, NJW 2018 p. 113 (114). The alleged inhibition in the development of personality due to the three-day blockage has at best a minor character (see above). Even if in the literature, with reference to Recital 146 of the DSGVO, the view is occasionally expressed that an effective enforcement of European data protection law requires a deterrent effect and the waiver of the materiality threshold applicable under previous law (see on this point BGH, judgment of 29 November 2016 - VI Z 530/15) (Gola, DSGVO, 2nd ed. Art 82 marginal no. 13 with further references; also AG Dietz, judgment of 7 November 2018 - 8 C 130/18 -juris), this does not justify compensation for immaterial minor damages. It is true that data protection law per se protects a subjective right that has a strong connection to the personal feelings of the individual. Nevertheless, Art 82 is not to be interpreted as justifying a claim for damages already in the case of every individually perceived inconvenience or in the case of minor infringements without serious damage to the self-image or reputation of a person (Becker in: Plath, DSGVO/BDSG, 3rd ed. 2018, Art 82 DSGVO, marginal no. 4c). In particular, the reference to "full and effective damages" in recital 146 of the DSGVO cannot be understood in this sense (see 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 under Article 2.1 of the Basic Law and the protection of personal data under Article 8 of the Basic Law do not normally require such compensation. This may be different in cases where the breach of data protection law affects a large number of persons in the same way and is an expression of deliberate, illegal and large-scale commercialisation (Becker in: Plath, DSGVO/BDSG, 3rd ed. 2018, Article 82 DSGVO, marginal no. 4d). However, this is not the case here. Although the commercialisation of user data is part of the defendant's business model, the blocking of the plaintiff's account does not promote this commercialisation, but rather hinders it, because the plaintiff does not "produce" any data during this period which the defendant could exploit. The considerable risk of abuse, which would be associated with the creation of a claim for damages for pain and suffering that would be almost unconditional in terms of legal consequences, particularly in the area of data protection law, also 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 an amendment would have found clear expression in the text of the Regulation or in the recitals. However, this is not the case.

In view of all this, the Senate advises to withdraw the appeal, which would save two court fees.