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| {{DISPLAYTITLE:Sa 11/18}} | | {{DISPLAYTITLE:Sa 11/18}} |
| [[Category:2019]] | | [[Category:2019]] |
| | [[Category:Article 6(1)(c) GDPR]] |
| {| class="wikitable" style="width: 25%; margin-left: 10px; float:right;" | | {| class="wikitable" style="width: 25%; margin-left: 10px; float:right;" |
| ! colspan="2" |LAG BW - Sa 11/18 | | ! colspan="2" |LAG BW - Sa 11/18 |
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| [[Category:Germany]] | | [[Category:Germany]] |
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| |Relevant Law:||[[Article 6 GDPR#1c|Article 6(1)(c) GDPR]] | | |Relevant Law:||[[Category:Article 6(1)(e) GDPR]] |
| [[Category:Article 6(1)(c) GDPR]]
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| [[Article 6 GDPR#1e|Article 6(1)(e) GDPR]]
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| [[Category:Article 6(1)(e) GDPR]] | |
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| [[Article 6 GDPR#4|Article 6(4) GDPR]]
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| [[Category:Article 6(4) GDPR]] | | [[Category:Article 6(4) GDPR]] |
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| [[Article 23 GDPR#1j|Article 23(1)(j) GDPR]]
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| [[Category:Article 23(1)(j) GDPR]] | | [[Category:Article 23(1)(j) GDPR]] |
| | | [[Article 15 GDPR]] |
| German Telemedia Act (TMG)
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| |Decided:||20.12.2018 | | |Decided:||20.12.2018 |
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| Furthermore, the claims for information and disclosure of personal performance and behavioral data are not limited in the present case by legitimate interests of third parties. Of course, the national does not give the data subject the right to information in accordance with Article 15 GDPR, insofar as the information would reveal confidential information about third-parties. However, even the existence of a corresponding ground for confidentiality does not mean that the data controller is entitled to refuse to provide the information. In fact, a weighing of interests must be carried out by the data controller, i.e. a balancing test between the right to information and the interest of confidentiality. But, the assessment must be done in each individual case and the Court cannot rule in general or in advance which legitimate interest prevails upon the other. The Court recognized that an overridding interest may exist if the employer guarantees anonymity to whistleblowers for the purpose of clarifying internal misconduct, because certain types of rule violations within a hierarchical structure can be detected more effectively through anonymous reporting procedures. | | Furthermore, the claims for information and disclosure of personal performance and behavioral data are not limited in the present case by legitimate interests of third parties. Of course, the national does not give the data subject the right to information in accordance with Article 15 GDPR, insofar as the information would reveal confidential information about third-parties. However, even the existence of a corresponding ground for confidentiality does not mean that the data controller is entitled to refuse to provide the information. In fact, a weighing of interests must be carried out by the data controller, i.e. a balancing test between the right to information and the interest of confidentiality. But, the assessment must be done in each individual case and the Court cannot rule in general or in advance which legitimate interest prevails upon the other. The Court recognized that an overridding interest may exist if the employer guarantees anonymity to whistleblowers for the purpose of clarifying internal misconduct, because certain types of rule violations within a hierarchical structure can be detected more effectively through anonymous reporting procedures. |
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| In such a case, the data subject's interest is likely to prevail due to an increased need for protection. Despite the employer raised that the need for protection by whistleblowers 555requires unconditional protection of the anonymity of reporting employees.] Ansonsten sei zu befürchten, dass Mitarbeiter künftig aus Angst vor Benachteiligung und „Repressalien“ auch bei schwerwiegendem Fehlverhalten auf entsprechende Hinweise an den Arbeitgeber verzichteten. [ Otherwise, there are fears that employees will in future refrain from notifying the employer of this, for fear of disadvantage and 'reprisals', even in the event of serious misconduct.] | | In such a case, the data subject's interest is likely to prevail due to an increased need for protection. The employer raised that the need for protection by whistleblowers requires unconditional protection. Otherwise, employees will in future refrain from notifying the employer of any misconduct, because they will be afraid to do it and they will be afraid of retaliation. However, according to the Court, these considerations are too general for a restiction of the plaintiff's right. The restriction of the right to information due to the predominant interest of third parties fails, because it remains unclear which concrete interests are threatened. |
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| ==Comment== | | ==Comment== |
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| The decision below is a machine translation of the original. Please refer to the German original for more details. | | The decision below is a machine translation of the original. Please refer to the German original for more details. |
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| <pre>DECISION
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| I. The applicant seeks information on the inventory data held by the party concerned. The party concerned operates the website www.facebook.com and the "Facebook" service. It also operates the so-called Facebook Messenger (hereinafter "Messenger"). This allows users to send messages to other people. The Messenger can be used by all users of the "Facebook" service and also by those persons who log in with their name and mobile phone number. The Applicant does not have a user account with the Participant, nor does it use the Messenger.
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| Via the Messenger, under the user names "S. K.", "Z. K." and "S. J." by users registered on the platform www.facebook.com (hereinafter referred to as "disputed user accounts") to send various text and voice messages and a video (together also referred to as "the messages") to friends and family members of the applicant. The text message, which contains the words "she is the biggest bitch" and "what a disgrace she is for the proud family [K.]", was reproduced by the applicant in its wording and claimed that, in addition to the insulting content, untrue factual allegations were also made about her.
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| The applicant requests "that the parties involved be permitted to provide the applicant with information on the inventory data of the [user accounts in dispute] which have sent messages under this user name, including under the URL (...), to [S.], by specifying the following data stored by the parties involved: IP addresses used by the users for uploading [the messages] and the exact time of uploading (...), names of the users, (...) e-mail addresses of the users, (...) IP addresses last used by the users to access [the disputed user accounts] and the exact time of access (...).
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| The Regional Court dismissed the application. The Higher Regional Court dismissed the applicant's appeal against it. With the admitted appeal, the applicant is pursuing her application for permission.
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| II. The appeal is successful.
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| (1) In support of its decision, the Appeals Court stated that the German courts had international jurisdiction because the party concerned had entered into the proceedings without complaint pursuant to the first sentence of Article 26(1) of the Brussels Convention. However, the applicant had no claim to permission to provide information because the scope of application of § 14.3 TMG in conjunction with § 1.3 NetzDG had not been opened up.
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| The application of Section 14 (3) of the German Telemedia Act is not excluded because the provision is superseded by Section 24 (1) no. 2 of the German Federal Data Protection Act. § Compared to Section 24 BDSG, Section 14 (3) and Section 15 (5) sentence 4 TMG constitute the more specific data protection regulation.
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| § However, Paragraph 14(3) of the TMG covers only those service providers who operate social networks within the meaning of Paragraph 1(1) of the NetzDG. The wording of the provision is an initial indication of this. However, the restriction of the scope of application to social networks does not automatically follow from the history of legislation. The statements in the explanatory memorandum to the Act could also be understood to mean that the reference to § 1.3 NetzDG merely concretises the criminal provisions, the violation of which could give rise to an authorisation under data protection law. Nevertheless, the Senate understood the legislator's intention to mean that only social networks within the meaning of § 1.1 NetzDG should be covered by the regulation. For it was stated in the explanatory memorandum to the Act that the entry into force of the Act would open up an enforceable right of victims to information vis-à-vis social networks in the case of violations of their personal rights. In addition, the decision of the Federal Court of Justice of 1 July 2014, which had been the reason for the insertion of Section 14 (3-5) of the German Telemedia Act, also dealt with the liability of the operator of an Internet portal and Section 14 of the German Telemedia Act presupposed a right to information which in principle existed and which appeared questionable in the context of mere individual communication.
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| The participants' messenger does not constitute a social network. It is a service of individual communication and as such not covered by the Network Enforcement Law. It is true that the way in which possible contacts can be identified in the interaction of the Messenger with the "Facebook" service makes it easier for users to send a large number of messages to a large number of (unknown) recipients without great effort. However, this alone does not make messages sent privately through Messenger into messages that are made available to selected user groups or the public.
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| Irrespective of this, it was questionable whether there was any right to information against the party concerned under Section 242 of the Civil Code. For it was not apparent that there was a statutory obligation between the applicant and the party concerned from which the party concerned could be obliged in good faith to provide information on the data of third parties.
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| 2. the appeal is admissible and also admissible in all other respects (Section 14 (4) sentences 5 and 7 TMG, Section 70 (1), Section 71 FamFG)
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| a) The appeal is admissible, Section 14 (4) sentence 5 TMG, Section 70 (1) FamFG. § Section 14 (4) sentence 7 TMG does not indicate otherwise.
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| aa) For the provision of information pursuant to Section 14 (3) of the German Telemedia Act, a prior court order on the admissibility of the provision of information is required, which must be applied for by the injured party, Section 14 (4) sentence 1 of the German Telemedia Act. Pursuant to Section 14 (4) sentence 5 of the German Telemedia Act, the provisions of the Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction apply mutatis mutandis; pursuant to sentence 6, the applicant shall bear the costs in accordance with the amendment of the cost regulation there (Section 81 FamFG). Finally, pursuant to sentence 7 of the provision, the appeal is admissible.
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| bb) However, it does not follow from this that the legal complaint not expressly mentioned in sentence 7 is not admissible. Sentence 7 of the provision does not - like sentence 6 - have a restrictive or amending effect (see also Federal Court of Justice, decisions of 19 April 2012 - I ZB 80/11, Federal Court of Justice Gazette 195, 257 marginal no. 8 "Everything can be improved"; and of 5 December 2012 - I ZB 48/12, NJW-RR 2013, 751 marginal no. 10 "The Deathly Hallows"; in each case on § 101.9 sentence 4 UrhG). It is true that sentence 5 (as a whole) already refers to the proceedings in family matters and in matters of voluntary jurisdiction, i.e. to the provisions of §§ 1 et seq. FamFG and thus also to the provisions on appeal and appeal on points of law (§§ 58 et seq. and §§ 70 et seq. FamFG). The additional provision in sentence 7 would therefore not have been necessary per se. However, there is no evidence for an interpretation to the effect that sentence 7 has a restrictive effect against this background. Nothing can be inferred from the wording of sentence 7 on the question of the admissibility of the appeal. The reasoning of the statute merely refers in general terms to the corresponding validity of the provisions of the Act on Procedure in Family Matters and in Matters of Voluntary Jurisdiction (Bundestag printed paper 18/13013 p. 24). There are also no apparent reasons why the legal complaint that is generally admissible there - with appropriate admission by the Appeals Court - should be excluded here; the licensing proceedings are not proceedings for interim relief.
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| b) The Appeals Court correctly assumes that the appeal court's decision, which is also to be examined ex officio in proceedings under the Act on Proceedings in Family Matters and Matters of Voluntary Jurisdiction in the Appeals Court (Federal Court of Justice, decisions of 10 December 2014 - XII ZB 662/13, Federal Court of Justice Z 203, 373 marginal no. 11; of 20 December 2017 - XII ZB 333/17, Federal Court of Justice Z 217, 165 marginal no. 9) international jurisdiction of the German courts is (in any event) given on the basis of the unreplying submission of the parties, Article 26.1 sentence 1 of Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Ia Regulation, hereinafter "Brussels Ia Regulation"). The applicability of Art. 26 EuGVVO presupposes the applicability of the EuGVVO in accordance with Art. 1(1) EuGVVO (Geimer in: Zöller, ZPO, 32nd edition, Art. 26 EuGVVO marginal no. 17). According to this provision, the EuGVVO is to be applied in civil and commercial matters, regardless of the type of jurisdiction.
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| aa) The scope of application of the ECJ Regulation is thus initially limited by the concept of civil and commercial matters (ECJ, judgment of 18 October 2011 - C-406/09, NJW 2011, 3568 para. 39). This concept must be interpreted autonomously (Case C-406/09, ECJ, judgment of 22 October 2015 - C-523/14, IPRax 2019, 147 marginal 29 mwN; Gottwald in: MünchKommZPO, 5th edition, Art. 1 EuGVVO marginal no. 1). According to the case law of the Court of Justice of the European Union (hereinafter referred to as the "Court of Justice"), the CFR Regulation applies to disputes whose legal nature is civil in nature according to substantive law criteria; its scope of application is determined by the nature of the legal relations existing between the parties or by the subject-matter of the dispute (ECJ, judgment of 18 October 2011 - C-406/09, NJW 2011, 3568 marginal 39). Thus, the inclusion of interim measures in the scope of application of the ECJ Regulation is not determined by their own legal nature, but by the nature of the claims secured by them (ECJ, judgments of 17 November 1998 - C-391/95, JZ 1999, 1103, 1104 marginal 33; of 18 October 2011 - C-406/09, NJW 2011, 3568 marginal 40). Similarly, although an administrative fine to be enforced under § 890 of the Code of Civil Procedure is of a punitive nature, must be paid to the German state and is collected ex officio; it nevertheless falls within the concept of civil and commercial matters if it was imposed in the course of proceedings that were based on the protection of private rights (European Court of Justice, judgment of 18 October 2011, loc. cit.)
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| According to the clear wording of Article 1(1) of the EC Treaty, the type of jurisdiction is not important. Consequently, civil law decisions of a criminal court (ECJ, judgment of 22 October 2015 - C-523/14, IPRax 2019, 147 marginal 27 mwN) and proceedings of voluntary jurisdiction under Article 1(1) of the EC Treaty also fall within the scope of application of the Regulation (see ECJ, judgment of 3 October 2013 - C-386/12, FamRZ 2013, 1873 marginal 18, 31; Geimer in: Zöller, ZPO, 32nd ed., Art. 4 EuGVVO marginal 25; Gottwald in: MünchKommZPO, 5th edition, Brussels Ia-VO Art. 1 marginal 3; Stadler in: Musielak/Voit, ZPO, 16th edition, Brussels Ia-VO Art. 1 marginal no. 1)
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| bb) According to these principles, the scope of application of the EuGVVO is opened up here; incidentally, the legislator also assumed this (BT-Drucks. 18/13013 p. 24).
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| (1) The authorisation procedure pursuant to Section 14(3)-(5) TMG is a civil matter within the meaning of Article 1(1) EuGVVO. The court order on the admissibility of the provision of information does not concern subjective public rights, but is intended to enable the assertion of civil-law claims for information against the service provider involved and, if applicable, civil-law claims for injunctive relief and damages against the user concerned (infringer). The legal relations underlying the licensing procedure are therefore of a private law nature. The fact that it is a matter of voluntary jurisdiction is irrelevant.
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| (2) Insofar as, from the overall context of the provisions of Art. 4 et seq. EuGVVO and the fact that they presuppose an "action" or the existence of a "defendant", it is inferred that the proceedings must be adversarial (Geimer in: Zöller, ZPO, 32nd edition, Art. 4 EuGVVO, marginal no. 24), this does not (again) restrict the - as explained - wide scope of application of the CFI Regulation contrary to its Article 1(1) (see Recital 10 of the CFI Regulation, according to which it is to cover the essential part of civil and commercial law). Application proceedings without a contested decision can also be "actions" within the meaning of the EuGVVO; other things can only apply to proceedings without any counterparty or parties involved in the proper sense (Mankowski in: Rauscher, Europäisches Zivilprozess- und Kollisionsrecht, 4th edition, Preamble to Art. 4 Brussels Ia-VO marginal 20 ff).
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| However, such a procedure does not exist here. The licensing procedure pursuant to Section 14 (4) TMG in conjunction with Sections 1 et seq. FamFG is not proceedings without any counterparty or party involved in the proper sense (aA OLG Munich, GRUR-RR 2012, 228 on the proceedings pursuant to Section 101 (9) UrhG; however, based on Article 1 (1) of Regulation (EC) No. 44/2001 and its recital 8; critically thereto Eifinger, GRUR-Prax 2011, 474), but a genuine party dispute of voluntary jurisdiction (see on this term BayObLG, order of 13 November 1986 - BReg 3 Z 137/86, juris marginal no. 50 on § 37 (2) BGB; Sternal in Keidel, FamFG, 19th ed. § 1 marginal no. 33). The applicant and the parties to the proceedings who are compulsorily involved in the proceedings pursuant to § 14.4 sentence 5,.5 of the Telemedia Act, § 7.2 no. 2 of the FamFG are faced with opposing interests. The applicant would like the parties involved to be permitted to provide information on data of their users. The party involved argues that such permission is not permissible. The court should decide the dispute with binding effect.
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| (cc) There is no need to refer a preliminary ruling to the Court of Justice (Article 267(3) TFEU) on the interpretation of Articles 1(1) and 26(1) of the EC Treaty. A reference for a preliminary ruling is necessary if a question of Union law arises which is relevant to the decision and requires uniform interpretation. However, this is not the case here. The legal situation is clarified by the case-law of the Court of Justice - as described above - in a way that leaves no reasonable doubt ("acte éclairé", see ECJ, judgment of 6 October 1982 - Case 283/81, NJW 1983, 1257, 1258; BVerfG, order of 28 August 2014 - 2 BvR 2639/09, NVwZ 2015, 52 marginal no. 35).
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| 3. the appeal is well founded. In favor of the applicant, it is to be assumed that the data protection provisions of the Telemedia Act apply to the Messenger (Section 1 (1), Section 11 (3) TMG; see below under a). There is an admissible application for permission to provide information (Section 14 (4) sentence 1 TMG in conjunction with Section 23 FamFG; see b below). The Appeals Court rightly assumes that Section 14 (3) - (5) of the German Telemedia Act is not superseded by the primacy of application of the Basic Regulation on data protection (see below under c). However, on the basis of the reasons given by the Appeals Court, the applicant's request for permission to provide information cannot be rejected (see below under d).
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| a) In the absence of sufficient findings by the Appeals Court, it must first be assumed in favour of the applicant that, with regard to the Messenger of the parties involved, the data protection regulations contained in the Telemedia Act, §§ 11 et seq. TMG - and not the Telecommunications Act and its data protection regulations, §§ 91 et seq. TKG - and not the Telecommunications Act and its data protection regulations, §§ 91 et seq. TKG, § 1 para. 1, § 11 para. 3 TMG in conjunction with § 3 no. 24 TKG.
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| aa) Under Art. 1 Par. 1 TMG, the Telemedia Act applies to all electronic information and communications services unless they are telecommunications services under Art. 3 No. 24 TKG which consist entirely in the transmission of signals via telecommunications networks, telecommunications-based services under Art. 3 No. 25 TKG (so-called value-added services, cf. BGH, ruling of October 20, 2005 - III ZR 37/05, juris; Ditscheid, CR 2006, 316 ff.) or broadcasting under Art. 2 of the Interstate Broadcasting Treaty (telemedia). According to § 3 No. 24 TKG, "telecommunications services" are services provided against payment which consist entirely or predominantly in the transmission of signals via telecommunications networks, including transmission services in broadcasting networks. According to Section 11 (3) TMG, only Section 15 (8) and Section 16 (2) no. 4 TMG apply to the collection and use of personal data of users in the case of telemedia services which consist mainly in the transmission of signals via telecommunications networks, because the Telecommunications Act and its data protection regulations are otherwise applicable to them, Section 3 no. 24, Sections 91 et seq. TKG.
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| bb) The Appeals Court did not deal with the question of whether the Telemedia Act or its data protection regulations apply to the Messenger of the parties involved pursuant to § 1 (1), § 11 (3) TMG (or whether the party involved provides telecommunications services with the Messenger within the meaning of § 3 no. 24 TKG which are subject to the Telecommunications Act and its data protection regulations; cf. also Mafi-Gudarzi, K&R 2018, 467). Admittedly, in view of the factual findings of the Appeals Court on the functioning of the Messenger made in a different context, there is much to be said for the fact that it does not constitute a telecommunications service (cf. on Internet-based services which do not provide Internet access, but are actively involved in sending and receiving messages by breaking messages down into data packets and feeding them via their servers into the open Internet and receiving them from the open Internet - so-called over-the-top or OTT communications services such as VoIP telephony, instant messaging and web-based e-mail services - ECJ, Judgment of 13 December 2009, p. 467). June 2019 - C-193/18, juris para. 33 et seq. concerning Google's GMail e-mail service; the proposal for a Regulation of the European Parliament and of the Council on privacy and electronic communications and repealing Directive 2002/58/EC of 10 January 2017, 2017/0003 (COD), p. 2 and Spindler in: Spindler/Schmitz, TMG, 2nd ed., § 1 marginal no. 26). In the absence of sufficient findings on this question, however, the applicability of the Telemedia Act and the data protection provisions of Section 14 (3-5) German Telemedia Act must be assumed in the appeal proceedings, Section 1 (1), Section 11 (3) German Telemedia Act.
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| b) The Appeals Court correctly assumes that - which is to be examined ex officio at every stage of the proceedings (see Federal Court of Justice, decisions of 12 July 2012 - V ZB 106/12, BGHZ 194, 97 marginal no. 10; of 28 October 2010 - V ZB 210/10, FGPrax 2011, 41 marginal no. 9 mwN; Sternal in: Keidel, FamFG, 19th ed., § 23 marginal 12; Bumiller/Harders/Schwamb, FamFG, 12th ed., § 23 marginal 6) - an effective request for permission to provide information initiating proceedings has been filed, § 14 (4) TMG in conjunction with § 23 FamFG. In particular, the applicant does not lack an interest in legal redress because it would have a simpler and cheaper way to obtain the (ultimately) requested information.
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| aa) A prerequisite for the admissibility of an application initiating proceedings pursuant to Sec. 23 of the Family Allocation Act is the existence of a legal interest in bringing proceedings. It must be examined ex officio in every situation of the proceedings and is missing if there is a simpler or less expensive way to achieve the objective or if the applicant has no legitimate interest in the decision requested. However, strict standards apply. The interest in legal redress is only absent (or does not exist) if the conduct of the proceedings is clearly contrary to the purpose of the proceedings and presents itself as an abuse of the administration of justice (Sternal in: Keidel, FamFG, 19th ed., § 23 marginal 33; Bumiller/Harders/Schwamb, FamFG, 12th ed., § 23 marginal 10).
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| bb) It's not like that here. There is no simpler or less expensive way to achieve the objective pursued by the applicant because the applicant could now assert a claim for information against the party concerned without the prior conduct of an authorisation procedure pursuant to Section 14 (3-5) German Telemedia Act. It is true that according to the provision of Section 24 (1) no. 2 of the new version of the BDSG, which entered into force on 25 May 2018 - i.e. during the appeal proceedings - the processing of personal data by non-public bodies for a purpose other than that for which the data were collected is now permissible if it is necessary for the assertion, exercise or defence of civil law claims, unless the interests of the data subject in the exclusion of the processing outweigh this. § However, Section 24 (1) no. 2 BDSG as amended is already not suitable to meet the requirements of Section 12 (2) TMG. Accordingly, the data collected for the provision of telemedia may only be used for other purposes if the Telemedia Act or another legal provision that expressly refers to telemedia permits this or the user has given his consent (cf. Senate decision of 1 July 2014 - VI ZR 345/13, BGHZ 201, 380 marginal no. 9 f.).
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| In addition, § 14, Subsections 3 - 5, TMG - as the Appeals Court has correctly recognized - takes precedence over § 24, Subsection 1, BDSG, as amended, and § 1, Subsection 2, BDSG. According to Section 1 (2) BDSG, other federal legal provisions on data protection take precedence over the provisions of the Federal Data Protection Act. If they do not or not conclusively regulate a matter to which the Federal Data Protection Act applies, the provisions of the Federal Data Protection Act shall apply. Section 14 (3 - 5) TMG is such other legal provision of the Federal Government on data protection within the meaning of Section 1 (2) sentence 1 BDSG (Franzen in: Erfurt Commentary on Labour Law, 19th ed., § 1 BDSG marginal no. 14; Hullen/Roggenkamp in: Plath, DSGVO/BDSG, 3rd ed., Section 14 TMG marginal no. 22). The provision was created as an authorisation norm under data protection law (BT-Drucks. 18/12356 p. 28). It was not subsequently repealed by the legislature either by the EU Data Protection Adaptation and Implementation Act of 30 June 2017 (Federal Law Gazette I, 2097) or by other laws, although an overlap in the areas of application of the provisions of Section 24 BDSG as amended and Section 14 (4) - (7) TMG had been recognised in the legislative procedure (see BT-Drucks. 18/12356 p. 28).
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| c) Furthermore, the Appeals Court rightly assumes that Section 14 (3) - (5) TMG continues to apply and is not superseded by the primacy of application of the basic data protection regulation in force since 25 May 2018. It is true that the Basic Data Protection Regulation has been binding in its entirety since 25 May 2018 and is directly applicable in every member state (Art. 99 (2) DS-GVO). National data protection laws can only contain national implementation, enforcement and special provisions and apply (only) subsidiarily (Article 1 (3) BDSG). However, it does not follow from this that the provision of Section 14 (3) - (5) TMG, which was not repealed by the EU Data Protection Adaptation and Implementation Act, is no longer applicable (Schulz in: Gola, DS-GVO, 2nd ed., Art. 6 marginal 32; Härting, Internetrecht, 6th ed., A. Datenschutzrecht marginal 133; Piltz in: Gola, DS-GVO, 2nd ed., Art. 95 marginal 19; Sydow, Europäische DS-GVO, 2nd ed., introduction marginal 43; Reimer in: ibid. Article 6 marginal 83; Schmitz ZRP 2017, 172, 173; see also Buchner, DuD 2016, 155, 161; Keppeler, MMR 2015, 779, 781).
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| aa) Priority for application is only possible if and to the extent that there is a contradiction between the directly applicable law of the European Union and national German law (see BGH, judgment of 5 July 2007 - IX ZR 256/06, BGHZ 173, 129 para. 22 mwN). The supranationally established law of the European Union does not have a law-destroying, derogating effect vis-à-vis the law of the Member States, but only pushes back its application to the extent required by the Treaties and permitted by the orders for application of the law issued by the Consent Act (BVerfG, Entscheidungen vom 19. July 2011 - 1 BvR 1916/09, BVerfGE 129, 78 marginal no. 81; of 6 July 2010 - 2 BvR 2661/06, BVerfGE 126, 286, juris marginal no. 53 et seq.; Federal Court of Finance, judgment of 8 August 2013 - V R 3/11, BFHE 242, 535 marginal no. 28). It is for the national courts to interpret the provisions of national law as far as possible in such a way that they can be applied in a way that contributes to the realisation of Union law (ECJ, judgment of 11 November 2015 - C-505/14, ZfIR 2016, 64 marginal nos. 31 et seqq. mwN; see also on the interpretation in conformity with the Directive BGH, judgment of 28 October 2015 - VIII ZR 158/11, BGHZ 207, 209 marginal nos. 35 et seq.)
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| bb) That said, Section 14 (3-5) TMG does not constitute an infringement of Union law. § Section 14 (3) German Telemedia Act permits - under certain conditions - the further processing of the data collected by the service provider for a purpose other than that for which it was collected, which is generally prohibited in Section 12 (2) German Telemedia Act. This is in line with the Basic Data Protection Regulation, which likewise provides for further processing for a different purpose only - apart from the consent of the data subject - on the basis of a legal provision permitting this, Article 6 (4) of the DS-GVO. § Section 14 (3-5) of the German Telemedia Act is a legal provision which, in a democratic society, constitutes a necessary and proportionate measure for the protection of the objectives set out in Article 23 (1) of the DS-GVO, Article 6 (4) DS-GVO (Hullen/Roggenkamp in: Plath, DSGVO/BDSG, 3rd ed., Section 14 of the German Telemedia Act, marginal no. 22). This provision forms the basis for the fact that further processing of the data covered by the authorisation for a purpose other than that intended can take place and is not excluded from the outset by the principle of purpose limitation (Article 5 (1) b) DS-GVO).
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| (1) Personal data must be collected for specified, explicit and legitimate purposes and may not be further processed in a way incompatible with those purposes ("purpose limitation"), except for archival purposes in the public interest, for scientific and historical research or for statistical purposes, Article 5(1)(b) DPA. Where processing for a purpose other than that for which the personal data were collected is not based on the consent of the data subject or on a legal provision of the Union or of the Member States which, in a democratic society, constitutes a necessary and proportionate measure to protect the personal data referred to in Article 5(1)(b) of the DPA, Article 5(1)(b) of the DPA shall apply. If the data subject does not consent to the processing of personal data for the purposes for which the personal data were originally collected, or to a legal provision of the Union or of the Member States which, in a democratic society, constitutes a necessary and proportionate measure for the protection of the objectives referred to in Article 23(1) of the DPO, the controller shall - in order to determine whether processing for a different purpose is compatible with the purpose for which the personal data were originally collected - take into account, inter alia, the criteria referred to in Article 6(4)(a) to (e) of the DPO (Article 6(4) DPO). Article 6 (4) of the DPA therefore permits further processing for a different purpose as an exception to the purpose limitation principle of Article 5 (1) (b) of the DPA, if either consent has been given or if a legal provision of the Union or of the Member States that meets the requirements of Article 6 (4) of the DPA permits this.
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| (2) According to the clear wording of Article 6(4) of the DPA, Member States are entitled, by means of national provisions with the objectives set out in Article 23(1) of the DPA (here: point (j) 'enforcement of civil law claims'), to allow further processing of data already collected which is permissible by way of exception and serves a different purpose (see also Albrecht/Jotzo, Das neue Datenschutzrecht der EU, 2017, p. 77; Kramer in: Auernhammer, DSGVO - BDSG, 6th ed., Section 24 BDSG marginal no. 4 and Art. 6 DSGVO marginal no. 66; Wedde, in: Däubler/Wedde/Weichert/Sommer, EU-DSGVO and BDSG-neu, 2018, Art. 6 DSGVO marginal no. 124; Culik/Döpke, ZD 2017, 226, 229; Assion/Nolte/Veil in: Gierschmann/Schlender/Stentzel/Veil, DS-GVO, 2018, Art. 6 marginal no. 227 f.; Taeger in: Taeger, DSGVO, BDSG, 3rd ed., art. 6 DSGVO marginal 140; open rose in: Taeger, DSGVO, BDSG, 3rd ed., Art. 24 BDSG para. 4)
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| By contrast, in so far as, with reference to Article 6(2) and (3) of the DS-BER, it is argued that Article 6(4) of the DS-BER has given the national legislature the power to impose a prohibition on processing under Article 6(1)(b) of the DS-BER only in the area of processing under Article 6(1)(c) of the DS-BER. c ("the processing is necessary for compliance with a legal obligation to which the controller is subject"; cf. on the concept of legal obligation Roßnagel in: Simitis/Hornung/Spiecker, Datenschutzrecht, 2019, Art. 6 para. 1 marginal no. 53; Taeger in: Taeger/Gabel, 3rd ed., Article 6 of the DPA, marginal no. 67) and letter e) ("the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller") (Heberlein in: Ehmann/Selmayr, DS-GVO, 2nd ed., 2018, Art. 6 marginal no. 51; Herbst in: Kühling/Buchner, DS-GVO, BDSG, 2nd ed., § 24 BDSG marginals 10, 13; Buchner/Petri in: Kühling/Buchner, DS-GVO, BDSG, 2nd ed., Art. 6 DS-GVO marginal 180, 199 f.; open Kühling/Martini EuZW 2016, 448, 451), this is not compatible with the wording of the provision.
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| The systematic reasons given by this view do not apply either. Article 6(2) and (3) of the DPA refer to paragraph 1 of the provision and formulate the admissibility of processing data for the purposes for which they were originally collected or with which they are still compatible within the meaning of Article 5(1)(b) of the DPA. This is because Member States may also specify in the legislation adopted pursuant to paragraphs 2 and 3 the tasks and purposes for which further processing is considered compatible and lawful (Recital 50, third sentence). However, the conditions of lawfulness regulated in Article 6 (1) of the DS-BER do not override the (absolute) prohibition of further processing (in the sense of a purpose incompatible with the original survey) contained in Article 5 (1) (b). Its restriction is found (solely) in Article 6 (4) DS-GVO, where explicit reference is made to legal provisions which constitute measures to protect the objectives set out in Article 23 (1) DS-GVO (Roßnagel in: Simitis/Hornung/Spiecker, Data Protection Law, 2019, Art. 6 para. 4 marginals 1, 4). If, on the other hand, the other view (Heberlein in: Ehmann/Selmayr, DS-GVO, 2nd ed., Art. 6 marginal 51) were correct, this reference would make no sense. Then it would have been sufficient to refer to the legal bases of paragraph 3 in the context of paragraph 4 (see also Kühling/Martini, Die Datenschutzgrundverordnung und das nationale Recht - Erste Überlegungen zum nationaler Regelungsbedarf, 2016, pp. 43 et seq.)
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| In so far as the concern is expressed that the Member States could use Article 6(4) of the DS-BER to acquire regulatory powers which Article 6(1) to (3) of the DS-BER had not intended to confer on them (Kühling/Martini, Die Datenschutzgrundverordnung und das nationale Recht - Erste Überlegungen zum nationalen Regelungsbedarf, 2016, p. 43 f.), this does not apply - at least with regard to further processing which is incompatible with the original purpose of the collection. In fact, the regulatory powers of the Union and of the Member States differ with regard to initial collection and earmarked processing compatible with the original purpose of collection pursuant to Article 6 (1) and (4) (a) - (e) DS-GVO on the one hand and with regard to earmarked further processing incompatible with the original purpose of collection pursuant to Article 6 (4) DS-GVO on the other. In view of the different initial provisions (the general prohibition of further processing incompatible with the purposes of the survey in Article 5 (1) (b) of the DS-BER on the one hand, and various legal situations in Article 6 (4) (a) - (e) of the DS-BER on the other hand, the different legal situations in Article 6 (4) (c) of the DS-BER are not compatible with the original purpose of the survey. 1 DPA for initial data collection and processing compatible with the purpose of the (initial) data collection on the other hand), different regulatory powers are necessary and meaningful precisely with regard to the objectives of Article 23 (1) (i) ("the protection of the data subject or of the rights and freedoms of other persons") and (j) ("the enforcement of civil law claims") DPA. This is made clear in the present case, in which a renewed collection of the data held by the party concerned is not possible for factual reasons in accordance with the principles of Article 6 (1) of the DPA and their further processing for a specific purpose would be (absolutely) impossible without a Member State regulation permitting this.
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| The interpretation found is also supported by the seventh sentence of recital 50 of the basic data protection regulation. According to this recital, the controller should be allowed to further process personal data, regardless of the compatibility of the purposes, if the processing is based on Union law or the law of the Member States, which in a democratic society constitutes a necessary and proportionate measure to protect in particular important objectives of general public interest. This does not exclude the objectives of Article 23(1)(i) and (j) ("the enforcement of civil claims") of the DPA.
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| (3) Section 14(3)-(5) TMG is a legal provision within the meaning of Article 6(4) DS-GVO. The provision serves the enforcement of civil law claims (Art. 23 (1) (j) DS-GVO) and thus pursues an objective mentioned in Art. 23 (1) DS-GVO. In a democratic society, it is a necessary and proportionate measure to protect this objective.
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| It is necessary because without information on the data of an infringer of absolutely protected rights, it is not possible to pursue and enforce the claims directed against him. It is proportionate. In accordance with Art. 23 Paragraph 2 Letters a - h DS-GVO, it contains a) the purpose of the processing ("enforcement of civil law claims due to the infringement of absolutely protected rights due to illegal content covered by § 1 Paragraph 3 NetzDG"), b) the categories of personal data ("existing inventory data", § 14 Paragraph 3 NetzDG), c) the categories of personal data ("existing inventory data", § 14 Paragraph 3 NetzDG) and d) the purpose of the processing ("processing of personal data", § 14 Paragraph 3 NetzDG). 3 TMG and "billing data" Section 15 (5) sentence 4 TMG), c) the scope of the restrictions imposed ("provision of information"), d) the guarantees against misuse or unlawful access or transmission ("prior court order", cf. BT-Drucks. 18/13013, p. 24), e) the details of the persons responsible ("service provider"), f) the respective retention periods and the applicable guarantees, taking into account the nature, extent and purposes of the processing ("to the extent ... necessary"), g) the risks to the rights and freedoms of the data subjects ("prior judicial order", cf. BT-Drucks. 18/13013 p. 24) and h) the right of data subjects to be informed of the restriction, provided that this is not detrimental to the purpose of the restriction ("may inform the user of the initiation of the procedure"). In doing so, the legislator assumed that the service provider will generally be obliged to inform the user under the contractual provisions in the internal relationship with the user (duty of consideration under § 241.2 BGB) (BT-Drucks. 13013 p. 24). In the licensing procedure pursuant to § 7 FamFG in conjunction with Article 103.1 of the Basic Law, the court must also ensure in a suitable manner - such as by obtaining a corresponding insurance from the service provider - that the user concerned has been informed of the licensing procedure as far as possible (see BVerfG, Order of 8 February 1994 - 1 BvR 765/89, NJW 1994, 1053; Zimmermann in Keidel, FamFG, 19th edition, § 7 marginal no. 50). Furthermore, the user concerned may, if necessary, file an appeal after obtaining knowledge of the permission (see BGH, decision of 5 December 2012 - I ZB 48/12, loc. cit.)
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| (cc) There is no need to refer a preliminary ruling to the Court of Justice (Article 267(3) TFEU) on the interpretation of Article 6(4) of the DS-GVO. A preliminary ruling is - as already explained above - necessary if a question of Union law arises which is relevant to the decision and requires uniform interpretation. However, this is not the case here.
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| (1) The legal situation - in so far as it is relevant for the decision in the present case - is as described above with regard to the interpretation given to Article 6(6)(a) and (b). 4 DS-GVO in view of the clear wording, the clear system of the provision and its unambiguous meaning and purpose (from the outset) ("acte clair", see ECJ, judgment of 6 October 1982 - Case 283/81, NJW 1983, 1257, 1258; Federal Constitutional Court, Order of 28 August 2014 - 2 BvR 2639/09, NVwZ 2015, 52 marginal no. 35). Incidentally, this was also assumed by the German legislature, which issued the provision of § 24.1 of the BDSG on the basis of the regulatory leeway opened up to it by Article 6.4 in conjunction with Article 23.1 of the DS-GVO (BT-Drucks. 18/11325 pp. 95 f.; see also Schwartmann/Pieper in: Schwartmann/Jaspers/Thüsing/Kugelmann, DS-GVO/BDSG, 2018, Art. 6 DS-GVO marginal no. 207).
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| (2) The question whether a legal provision within the meaning of Article 6(4) of the DS-BER also constitutes a legal basis for further processing incompatible with the original purpose is not relevant to the present proceedings, or whether it merely opens up the possibility of such further processing, but must also be subject to one of the lawfulness criteria of Article 6(1)(a) to (f) DS-BER (see, for example, Schwartmann/Pieper in: Schwartmann/Jaspers/Thüsing/Kugelmann, 2018, DS-GVO/BDSG, Art. 6 DS-GVO marginal no. 185 f. mwN). The latter would mean - in a case constellation such as the present one - that further processing for a different purpose on the basis of a legal provision of a Member State for the enforcement of civil law claims (Article 23 (1) (j) DS-GVO) could only be carried out if at the same time there was scope for weighing up the conflicting rights and interests in the specific individual case (Article 6 (1) (f) DS-GVO). A member state may not conclusively prescribe the result of the weighing without leaving room for a result which is different due to special circumstances of the individual case (see also Senate, judgment of 16 May 2017 - VI ZR 135/13, BGHZ 215, 55 marginal no. 40).
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| However, it is not clear how Art. 6 (4) DS-GVO is to be interpreted with regard to this question and whether in this case the provision of Section 14 (3) - (5) TMG can be interpreted in conformity with Union law in such a way that permission may only be granted if the result of the weighing of interests, which is in principle prescribed, does not differ due to special circumstances of the individual case. For this only becomes relevant for the decision when sufficient findings have been made (Section 26 FamFG in conjunction with Section 14 (4) TMG, Section 37 FamFG) as to whether, when and to whom of which user accounts which illegal content within the meaning of Section 1 (4) TMG is made available, and if so, to whom. 3 NetzDG, whether and to what extent the data requested by the applicant is inventory data or usage data within the meaning of Section 14 (3) and Section 15 (5) sentence 4 TMG, and whether circumstances of the individual case exist (or may exist) which are likely to call into question the generally prescribed result of the weighing of interests. Nothing has been determined in detail in this regard to date. Only on the basis of sufficient findings will it become apparent whether and in relation to which user accounts any necessary (individual) consideration could lead to a different result and thus be relevant to the decision.
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| d) However, the Appeals Court wrongly held that Section 14 (3) TMG only covers service providers who operate social networks within the meaning of Section 1 (1) NetzDG. The scope of application of the provision is not limited to social networks within the meaning of the Network Enforcement Act, but applies to all service providers within the meaning of Section 2 no. 1 TMG. Therefore, the request of the applicant cannot be rejected on the grounds of the Court of Appeal.
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| aa) According to § 14 para. 3 TMG, the service provider may, in individual cases, provide information on the inventory data held by him, insofar as this is necessary to enforce civil law claims due to the violation of absolutely protected rights due to illegal content covered by § 1 para. 3 NetzDG. According to the definition contained in § 2 sentence 1 no. 1 TMG, a service provider is any natural and legal person who provides its own or third-party telemedia for use or arranges access to such use.
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| Illegal contents are defined in § 1 para. 3 NetzDG as contents in the sense of § 1 para. 1 NetzDG, which fulfil the facts of §§ 86, 86a, 89a, 91, 100a, 111, 126, 129 to 129b, 130, 131, 140, 166, 184b in connection with 184d, 185 to 187, 201a, 241 or 269 of the German Criminal Code and are not justified. Pursuant to Section 1 (1) of the NetzDG, the Network Enforcement Act applies to telemedia service providers who operate platforms on the Internet with the intention of making a profit, which are intended to enable users to share any content with other users or make it available to the public (social networks). Platforms with journalistically and editorially designed offers for which the service provider is responsible are not considered social networks within the meaning of the Act (Section 1 (3) sentence 2 NetzDG). The same applies to platforms intended for individual communication or for the dissemination of specific content (§ 1 (1) sentence 3 NetzDG).
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| bb) Having said this, the question arises as to whether (all) service providers within the meaning of Section 2 sentence 1 no. 1 TMG are covered by Section 14 (3) TMG and whether the reference to Section 1 (3) NetzDG merely specifies the penal provisions, the violation of which creates an authorisation under data protection law for the fulfilment of a possible right to information (cf. Mafi-Gudarzi, K&R 2018, 467; Pille, NJW 2018, 3545, 3546), or whether - as the Appeals Court saw it - the provision is to be interpreted much more narrowly to the effect that, because of the further reference to "content within the meaning of paragraph 1" in § 1.3 NetzDG, it refers only to telemedia service providers who operate social networks within the meaning of the Network Enforcement Act.
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| The Senate rules that Section 14(3) of the German Telemedia Act applies to all service providers within the meaning of Section 2(1)(1) of that Act. The wording of the provision is ambiguous because the reference contained therein can be understood in both senses. However, the meaning and purpose of the provision, the history of its origin and its systematic position argue in favour of an interpretation to the effect that all service providers within the meaning of Section 2 sentence 1 no. 1 German Telemedia Act are covered by the provision.
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| (1) According to the original draft of the Network Enforcement Act, it was initially intended to add the words 'or other absolutely protected rights' to Section 14(2) of the German Telemedia Act after the word 'property' (BT-Drucks. 18/12356 p. 10, p. 28 et seq.). Against the background of the Senate's decision of 1 July 2014 (VI ZR 345/13, BGHZ 201, 380 ff.), this was intended to extend Section 14 (2) TMG and to enable the enforcement of a right to information existing under general principles of civil law (BT print. 18/12356 p. 29 above). The reason for the amendment of Section 14 of the German Telemedia Act was therefore the case structure on which the Senate decision of 1 July 2014 (VI ZR 345/13, BGHZ 2012, 380 et seq.) is based (see BT print 18/12356 p. 28). This concerned a statement made anonymously on an Internet portal that enables the assessment of doctors; the Senate denied a claim for information by the injured party against the operator of the assessment portal. In support of this claim, the Senate stated that the provision of information was legally impossible because there was no basis for authorisation under data protection law which met the requirements of Section 12 (2) of the German Telemedia Act. This should now be created.
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| (2) In its opinion, the Bundesrat expressed reservations about the proposal and requested that the planned amendment of Section 14 (2) TMG be examined in the further legislative procedure to determine whether it was necessary and related to the objectives of the Act (Bundestag printed paper 18/12727 p. 25; Prüfbitte No. 27). In this context, he pointed out that the Telemedia Act obliges all service providers, so that there is a risk of a de facto abolition of the possibility of anonymous and pseudonymous expression of opinion on the Internet. Subsequently, the current version of the provision was adopted on the recommendation of the Committee on Legal Affairs (BT-Drucks. 18/13013 pp. 12, 13; pp. 23 f.). Victims of violations of personal rights on the network were to be enabled to obtain the inventory data of service providers' infringers on the basis of a court order (BT-Drucks. 18/13013 p. 2). According to the explanatory memorandum to the Act, the aim of the right to information is to provide the persons concerned with an effective and enforceable claim to establish the identity of the infringer in the case of violations of rights on the Internet. This corresponds to the concern already pursued with the original draft law with § 14 (2) TMG-E. In cases in which a right to information pursuant to § 242 of the German Civil Code (BGB) exists on the merits, the service provider would be able to fulfil this right to information.
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| (3) It follows from this that the meaning and purpose of the Act is not limited to (only) giving a claim to the person infringed by statements in social networks within the meaning of § 1 (1) sentence 1 NetzDG, but that it should apply to all violations of personal rights on the Internet. According to its meaning and purpose, Section 14 (3) TMG therefore covers all service providers within the meaning of Section 2 sentence 1 no. 1 TMG. Contrary to the legislator's explicitly expressed intention, the narrower interpretation would mean that the case on which the Senate's decision of 1 July 2014 (VI ZR 345/13, BGHZ 2012, 380 et seq.) is based would not fall within the scope of application of Section 14 (3) TMG, although it was the reason for the new provision. This is because only a few social networks are covered by Section 1 (1) sentence 1 NetzDG, namely those which are designed to enable users to share any content with other users or make it available to the public (see BT-Drucks. 18/12727 p. 18). Doctors' evaluation portals are not covered as platforms intended for the dissemination of specific content, § 1 (1) sentence 3 NetzDG (see BT-Drucks. 18/12727 p. 18; BT-Drucks. 18/13013 p. 18). A narrower interpretation would therefore miss the purpose of the Act.
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| (4) Finally, the systematic position of the provision in the Telemedia Act also suggests that it is intended to cover all service providers within the meaning of Section 2 sentence 1 no. 1 of the German Telemedia Act. If the provision had been limited to the scope of application of the Network Enforcement Act, it would have been more logical to locate it there systematically as well.
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| III. The contested decision cannot be sustained thereafter; the case was to be referred back to the Appeals Court for further consideration and decision (Sec. 74 (6), second sentence, FamFG).
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| For the further procedure the senate points out the following:
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| 1. if the Appeals Court can satisfy itself that the Messenger of the parties involved is a telemedium, it will, if necessary, determine ex officio (§§ 26 et seq. FamFG) and will have to satisfy itself (§ 37 FamFG) whether, when and to whom of the user accounts in dispute unlawful content within the meaning of § 1 (3) NetzDG has been sent So far, the printouts submitted by the applicant prove with regard to the user accounts "Z. K." and "S. J." do not even prove that any messages have been sent from these accounts. Nonetheless, the Appeals Court was convinced that "of three ... user accounts, there were different messages ... from three different user accounts". It will have to carry out the corresponding investigations and findings with regard to all three user accounts if necessary - insofar as this should come up in the further proceedings (see below under 2). In order to protect the rights of the users concerned who are unable to participate in the licensing procedure, the legislator has provided for the applicability of the law on proceedings in family matters and in matters of voluntary jurisdiction. In the interest of the users, the principle of official investigation applicable in these proceedings ensures in procedural terms that data is not released prematurely (see BT-Drucks. 18/13013 p. 24). For the issuance of a court order pursuant to Section 14 (4) TMG, the mere assertion of the applicant that a user has sent a message is therefore not sufficient.
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| 2. The appellate court will also - which it has correctly recognised as a further prerequisite for a court order on the admissibility of the provision of information - have to examine whether the applicant is materially entitled to a claim for information against the parties involved (Section 14 (4) of the German Telemedia Act; see also Senate, Judgment of 1 July 2014 - VI ZR 345/13, BGHZ 201, 380 marginal no. 6 f.).
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| </pre>
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| {{DEFAULTSORT:Sa_11/18}} | | {{DEFAULTSORT:Sa_11/18}} |
