LG Köln - 28 O 168/22

LG Köln - 28 O 168/22
Court:	LG Köln (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 17(1)(c) GDPR Article 17(1)(d) GDPR Article 17(3)(a) GDPR Article 79(2) GDPR Article 11 Charter of Fundamental Rights of the European Union Article 7 Charter of Fundamental Rights of the European Union Article 8 Charter of Fundamental Rights of the European Union
Decided:	04.07.2022
Published:
Parties:
National Case Number/Name:	28 O 168/22
European Case Law Identifier:	DE:LGK:2022:0704.28O168.22.00
Appeal from:
Appeal to:	Unknown
Original Language(s):	German
Original Source:	OpenJur (in German)
Initial Contributor:	Fabian Dechent

The Regional Court of Cologne (LG Köln) held that a search engine is not allowed to show search results if the linked website contains untrue factual claims or expressions of opinion with an untrue factual core about criminal conduct of a data subject.

English Summary

Facts

The controller is an operator of a search engine. If a user used specific keywords in a name-based search, the search engine showed search results that contained the following wording: "T ENTREPRENEUR, CMO AND VICTIM OF DOMESTIC VIOLENCE BY I, BOYFRIEND AND INVESTOR IN HER COMPANY I come from a privileged background, a loving family, I have a higher college degree, I’ve been an entrepreneur for as long as I can remember, I’m a CMO, I speak 5 languages fluently… and I was in an abusive relationship with a venture capitalist. The emotional abuse escalated into physical abuse and on the 23rd of April 2021 I ended up in hospital and he was incarcerated.” Images of the data subject were also included. The data subject requested an interim injunction stopping the search engine from listing search results containing the quote and his images.

Holding

The Regional Court of Cologne (LG Köln) held that the application for an interim injunction is admissible and well-founded. The proceedings were brought against the controller on the basis of Article 79(2) GDPR.

On the merits, the court ruled that the operator of a search engine is always considered to be the responsible party within the meaning of Article 4(7) GDPR and that the controller is requested to delete the data subject’s personal data as the requirements of Article 17(1)(c) GDPR and Article 17(1)(c) GDPR are met. The processing of the data subject’s personal data in this case is not necessary for exercising the right of freedom of expression and information under Article 17(3)(a) GDPR. In particular, the rights of the data subject under Articles 7 and 8 of the Charter of Fundamental Rights of the EU (CFR) outweigh the freedom of the controller to conduct a business under Article 16 CFR and the freedom of expression and information under Article 11 CFR. In conducting the balancing exercise, it was decisive for the court that the data subject made it credible that the cited statements were untrue or opinions with an untrue factual core and that the data subject has still not been legally convicted for the alleged assaults. Therefore, the interests of the data subject were held to outweigh the interests of the controller.

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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.

tenor
I. The following is ordered by way of an injunction:

In the case of respondent 1), if the court avoids a fine of up to €250,000 for each case of infringement, or alternatively in the event that this cannot be collected, it will be imposed on the respondent for a period of imprisonment or imprisonment of up to 6 months , whereby the detention may not exceed a total of two years and is to be enforced against the chairman of the board -

forbidden,

in the Federal Republic of Germany on its domain H.de in the H search results to refer to the URL https://D.com/ when entering the search terms "I" and "T" if the website can be found under the above URL

1. the passage "T ENTREPRENEUR, CMO AND VICTIM OF DOMESTIC VIOLENCE BY I, BOYFRIEND AND INVESTOR IN HER COMPANY I come from a privileged background, a loving family, I have a higher college degree, I've been an entrepreneur for as long as I can remember, I'm a CMO, I speak 5 languages fluently... and I was in an abusive relationship with a venture capitalist.The emotional abuse escalated into physical abuse and on the 23rd of April 2021 I ended up in hospital and he was incarcerated." (underlining relevant) contains and/or

2. contains the images of the applicant reproduced below

Image file removed

if this happens as on 05/16/2022 and as shown below:

Image file removed

II. The respondent each bears half the costs of the procedure.

III. Amount in dispute: €40,000

reasons
The application for an injunction dated June 9, 2022 is permissible and justified. In particular, the Regional Court of Cologne is in favor of issuing the injunction pursuant to §§ 937 Paragraph 1, 943 Paragraph 1, 802 ZPO. The international jurisdiction of the Regional Court of Cologne in the main case results from Art. 79 Para. 2 DS-GVO. The local jurisdiction results from § 32 ZPO, which is not blocked by the applicability of the DS-GVO, since this only provides rules for international jurisdiction in Art. 79 DS-GVO, while the substantive and local jurisdiction of the court seized continue to be based on national law (Gola/Werkmeister, General Data Protection Regulation, Art. 79 para. 10; Kühling/Buchner/Bergt, DS-GVO BDSG, Art. 79 DS-GVO, para. 14 with further references).

The applicant has made the existence of the reason for disposal and the right of disposal credible.

1.

The prerequisites for a decision without an oral hearing (§ 937 Para. 2 ZPO) are given in view of the interests existing in the right of expression, especially since the applicant carried out the procedure quickly. The respondents were heard.

2.

The right of disposal results exclusively from Art. 17 Para. 1 DS-GVO, which blocks the applicability of provisions of national non-uniform law (BGH, judgment of July 27th, 2020, VI ZR 405/18, GRUR 2020, 1331, 1332, para 13 ff., 64).

Both respondents are to be regarded as responsible for the processing of data in the context of the search engine, Art. 4 No. 7 DS-GVO, and thus passively legitimate for the claim from Art. 17 Para. 1 DS-GVO. In the case of a search engine on the Internet, the operator of the search engine is to be regarded as the person responsible within the meaning of Art. 4 No. 7 DS-GVO (ECJ, judgment of September 24th, 2019, Case C-136/17, CNIL). Respondent 1) is at least a co-operator of the search engine alongside respondent 2) (cf. Chamber, decision of June 3, 2022, 28 O 143/22, n.v.).

The requirements of Art. 17 (1) lit. c) and d) GDPR are met. The processing of the data in the specific case, namely the display of the disputed website in the name-related search results for the applicant, is not necessary to exercise the right to freedom of expression and information, Art. 17 (3) lit. a) GDPR. In the required overall consideration, the right to respect for privacy and protection of the applicant's personal data from Art. 7, 8 GRCh outweighs the entrepreneurial freedom of the respondent from Art. 16 GRCh and the freedom of opinion of the content providers and the public's interest in information, which must also be taken into account Art. 11 GRCh. As already stated in the decision of the Chamber against Ms T of January 24, 2022 (28 O 20/22, Annex ASt 2) concerning the linked website, it is decisive that the applicant has made credible statements that the allegations are untrue or expressions of opinion with an untrue factual core, insofar as the applicant is accused there of having physically abused Ms. T. Furthermore, it has been made credible that the applicant has still not been convicted in Spain of the alleged attack on Ms T.

Irrespective of the content of the notification by the respondents dated July 1, 2022, there is a risk of repetition after a cease and desist declaration with a penalty has not been submitted. Likewise, the fact that the respondent to 2) has declared "on June 24, 2022 in the Federal Republic of Germany on its domain www.H.de in the H search engine, the search result for the URL https://D.com/ Entry of the search terms "I" and "T" blocked" does not preclude the acceptance of the reason for disposal.

3.

Insofar as the tenor of the injunction deviates from the application made, the Chamber has interpreted the application or made use of the discretion granted to it by Section 938 (1) ZPO without a partial rejection having taken place.

4.

In view of the involvement of the opposing party, the decision will be served ex officio. This does not affect the obligations from §§ 936, 929 ZPO (execution).

5.

The decision on costs is based on §§ 91, 100 ZPO, the determination of the amount in dispute on § 53 Paragraph 1 No. 1 GKG in conjunction with § 3 ZPO and in the case of the respondent to 1) the threat of administrative measures from § 890 Paragraph 2 ZPO.