LG Frankfurt am Main - 2-03 O 282/19

LG Frankfurt am Main - 2-03 O 282/19
Court:	LG Frankfurt am Main (Germany)
Jurisdiction:	Germany
Relevant Law:	§ 620 of German Civil Code (Bürgerliches Gesetzbuch (BGB) § 626 of German Civil Code (Bürgerliches Gesetzbuch (BGB) § 13 (6) of German Telemedia Act (Telemediengesetz (TMG)
Decided:	03.09.2020
Published:
Parties:
National Case Number/Name:	2-03 O 282/19
European Case Law Identifier:	ECLI:DE:LGFFM:2020:0903.2.03O282.19.00
Appeal from:
Appeal to:	Unknown
Original Language(s):	German
Original Source:	www.lareda.hessenrecht.hessen.de (in German)
Initial Contributor:	Ditto K Thomas

The court held that the operator of a social network may check the identity of a user according to his terms and conditions. If they ask the user to reveal or disclose the identity and the user refuses the verification, the operator can cancel the concluded contract and can delete login account of a member .

English Summary

Facts

The defendant operates the website and the social network Platform. Asccording to the terms and conditions of the defendant`s network the use of this network is based on a one-time registration with valued identification. The plaintiff registered in this network as a user of the service. The defendant transferred the plaintiff's account to account verification proceedings and they requested the plaintiff to confirm the authenticity of his account, by presenting a copy of his ID or picture, or by entering a confirmation code from one of his devices. The plaintiff did not answered the defendants request. This is why the defendant blocked and deleted the account without giving any further reasons. Thereafter, the plaintiff tried to contact the defendant to restore his account, but did not succeed.

Dispute

Is the plaintiff entitled to claim to be able to enter into a contract with the defendant without verification of his identity according to the defendant's terms of use?.

Can the plaintiff maintain anonymity on the Internet according to section 13 (6) TMG, which provides for the anonymous use of telemedia services?

Is section 13 (6) of the German Telemedia Act (Telemediengesetz - TMG) still effective after the GDPR has come into force?

Holding

The court found that the defendant had a right to extraordinary termination, because the plaintiff violated his obligations according to the stipulated terms of user conditions on the defendant´s platform. In this case, the defendant does not know the plaintiff personally and concludes contracts with him only via the Internet. This is why they may obtain knowledge of the identity of its contractual partner, but the plaintiff is also free to not use the defendant´s service.

The court concluded that the plaintiff has the right to register under a different name or to register in accordance with section 13 (6) of the German Telemedia Act under a pseudonym, and the defendant did not require the plaintiff to designate his profile with his own name, but only to disclose it to the defendant. Section 13 (6) of the German Telemedia Act (TMG) is not applicable in this case.

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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.

Court: District Court Frankfurt 3rd civil chamber (Landgericht Frankfurt 3. Zivilkammer (LG Frankfurt)
Decision date: 03.09.2020
File number: 2-03 O 282/19
ECLI: ECLI: DE: LGFFM: 2020:0903.2.03O282.19.00
Document type: Judgment
State:	Hessen
Laws: § 620 and § 626 of German Civil Code (Bürgerliches Gesetzbuch (BGB)
And § 13 (6) of German Telemedia Act (Telemediengesetz (TMG)
To cancel an account on a social network after a denied to producing identity check verification.
Guideline Principle
The operator of a social network can basically check the identity of a user according to their conditions. If they ask to the user to reveal his or her identifying method and the user refuses this verification, the operator can cancel the concluded contract.
Note
challengeable.
Tenor
The application is dismissed.
Orders the plaintiff to pay the costs of the proceedings.
The judgement is provisionally enforceable against a security deposit of 110% of the amount to be enforced.
Facts
The parties are in dispute about the admissibility of the deletion of a profile on the defendant's platform, damages and pre-trial attorney fees.
The defendant operates the website and the social network www.F.com. The social network is operated by the Defendant's parent company based in California, USA. For Europe, the provider and contractual partner of the users of F is the Defendant with its registered office in Dublin, Ireland. The use of the social network F is based on a one-time registration with clear data.
The Defendant provides the users with terms and conditions of business, which consist, among other things, of the Terms of Use (Annex K1) and the Community Standards (Annex K3).
Clause 1 of these Terms of Service states, among other things :
"We combat harmful conduct and protect and support our community:
People can only form communities at F if they feel safe. We employ dedicated teams around the world and develop advanced technical systems to detect misuse of our products, harmful behavior toward others, and situations where we may be able to help support and protect our community. If we learn of such content or behavior, we will take appropriate action, such as offering help, removing content, blocking access to certain features, deactivating an account, or contacting law enforcement authorities. We will share information with other F-Companies if we become aware of abuse or harmful behavior by anyone using one of our products."
Clause 3 reads among others (emphasis here):
3.1 Who can use F
When people stand behind their opinions and actions, our community is safer and more accountable. That is why you must do the following:
-Use the same name that you use in your daily life.
-Provide accurate and correct information about yourself.
-Create only one account (your own) and use your chronicle for personal purposes.
-Do not share your password, give others access to your F account, or transfer your account to someone else (without our consent).
We try to make F available comprehensively and for everyone. However, you may not use F if the following applies:
3.2 What you can share and do on F
We want people to use F to express themselves and share content that is important to them. However, this must not be at the expense of the safety and well-being of others or the integrity of our community. You therefore agree not to engage in (or encourage or assist others to engage in) the conduct described below:
1.you may not use our products to do or share anything to which the following applies:
-It violates these Terms of Use, our Community Standards, or any other terms, conditions, and policies that apply to your use of F
-It is unlawful, misleading, discriminatory or fraudulent.
-It violates or infringes the rights of another person, such as their intellectual property rights.
2.you may not upload viruses or malicious code or do anything that may interrupt, overload or impair the proper functioning or appearance of our products.
3.you may not (without our prior consent) access, collect or attempt to access data from our products by any automated means that you are not authorized to access.
We can remove or block content that violates these regulations.
If we remove any content you share because it violates our community standards, we will notify you accordingly and explain what options you have to request further review, unless you have materially or repeatedly violated these Terms of Use, or notification by us could result in legal liability for us or others, harm our community, compromise or disrupt the integrity or operation of our services, systems or products, or we are prevented from doing so by technical limitations or are prohibited from doing so by law.
To help us promote our community, we encourage you to report content or conduct that you believe violates your rights (including intellectual property rights) or our terms of use and policies.
If the important reason is a violation of an obligation of these terms of use, the termination is only permissible after the unsuccessful expiration of a granted remedy period or after an unsuccessful warning. However, a time limit for remedy is not required if the other party seriously and finally refuses to fulfil its obligations or if, after weighing the interests of both parties, special circumstances justify immediate termination.
You can read more about what you can do if your account has been deactivated and how to contact us if you think we have deactivated your account by mistake.
If you delete your account or we deactivate it, these Terms of Use will end as an agreement between you and us, but the following provisions will continue to apply: 3.3.1, 4.2 through 4.5.
The plaintiff registered on 07.03.2019 as a user of the service offered by the defendant, using the e-mail address r...@web.de.
The defendant transferred the plaintiff's account to the so-called "fake account checkpoint" and requested the plaintiff to confirm the authenticity of his account, e.g. by presenting a copy of his ID or picture, or by entering a confirmation code from one of his devices. The plaintiff did not comply.
On 09.03.2019, the defendant blocked the plaintiff's account without giving reasons.
The plaintiff tried to persuade the defendant to restore his account, but do not succeeded
On March 25, 2019, the plaintiff turned to his local attorneys of record. These obtained a confirmation of cover from the legal expense’s insurance for the out-of-court activity, for which the plaintiff claimed legal fees from an object value of 8,000 EUR plus lump sum and value added tax, a total of 729.23 EUR. The plaintiff requested the defendant with a lawyer's letter dated 11.04.2019 (Annex K 13, Bl. 122 d.A.) to lift the blockage, among other things.
The plaintiff is of the opinion that the parties have concluded a contract for the use of the defendant's platform, which is a continuing obligation with elements of a lease, work and service contract. This contract had the character of remuneration.
The Defendant's terms of use were not effectively amended in spring 2018.
In addition, the blocking or deactivation of an account of the defendant without giving reasons was fundamentally illegal. The Defendant has no ordinary right of termination. It can be seen from Sections 4.1 and 4.2 of the Terms of Use that the Defendant only has an extraordinary right of termination if one party violates its obligations. Only the User may terminate the contract at any time without giving reasons in accordance with clause 4.1 of the Terms of Use. By deleting the plaintiff's account without giving reasons, the defendant had violated its own terms of use.
The defendant bears the burden of proof for the reason of an extraordinary termination. The defendant had also not had the right to force the plaintiff to submit evidence.
The plaintiff can require accordingly restoration. This covers also the re-establishment of all contents linked with its profile.
The damage caused by the refusal to use the network had to be assessed at 50 EUR per day.
The plaintiff requests,
1. to completely restore the plaintiff's profile deleted on 08.03.2019 (registration e-mail: r...@web.de) on www.F.com and in particular to restore all links of this profile to the profiles of other users as they existed at the time of deletion; and to grant the plaintiff access to this account
2. order the defendant to pay the applicant damages in the amount of EUR 1 500 plus interest at 5 percentage points above the prime rate since 8 March 2019
3. order the defendant to pay the applicant's legal fees
a. for the extrajudicial activity in the amount of EUR 691.33 and
b. for obtaining a cover note for the extrajudicial activity in the amount of EUR 201.71; and
c. for obtaining a cover note for the claim in the amount of EUR 729.23
by payment to the law firm ... to the law firm.

The defendant claims that the Court should

dismiss the application.
The defendant alleges that it was entitled to assume that the plaintiff had created a bogus account.
Defendant believes that it has a right to deactivate its users' accounts under clauses 1, 3 and 4 of the Terms of Service. It was entitled to terminate the contract with the plaintiff because he had violated the terms of use. He had registered a bogus account and, in particular, had not submitted any evidence at her request. She was also entitled to request the plaintiff to provide evidence. It also granted him a period of time in which he could prove his identity, so that a period of time was set for remedy within the meaning of Section 4.2 of the Terms of Use. The defendant is also not obliged to provide a user with a reason for deactivating his account. Among other things, this is not provided for in § 626 para. 2 sentence 3 BGB. Nor could the violation of such an obligation lead to the invalidity of the termination, but only to a claim for information about the reason for the measure.
The plaintiff had not suffered any damage. The corresponding application was also inadmissible, as it was not sufficiently specified.
The defendant initially refused to accept service because the documents were not translated (p. 175 of the annex). The plaintiff then applied for a default judgment in a written statement dated September 10, 2019. Before a possible default judgment was issued, the defendant indicated its readiness to defend in a written statement dated 16 September 2019, while maintaining its position that there had been no effective service.
For further details, reference is made to the pleadings exchanged between the parties, including annexes and other contents of the file.
Reasons for decision
The action is admissible, but unfounded.
I.
The LG Frankfurt a.M. has international and local jurisdiction. This is not in dispute between the parties, so that in any case, on the basis of a statement without objections pursuant to Art. 26 para. 1 p. 1 of the Brussels Ia Regulation 1215/2012, it can be assumed that the court seised has jurisdiction (see also BGH NJW 2018, 3178 marginal no. 16).
1. the plaintiff has no claim against the defendant for the activation of his profile (application under 1.). In particular, such a claim does not arise from the contract concluded between the parties.
a. The claims asserted shall be assessed under German law in accordance with Art. 3 para. 1, Art. 6 para. 2 of Rome I-VO 593/2008. This is not in dispute between the parties. Furthermore, the parties have agreed in the terms of use of the defendant that German law shall apply (see also LG Hamburg, Urt. v. 31.05.2019 - 305 O 117/18, BeckRS 2019, 21755 marginal no. 18).
b. In principle, the contract between a user and the defendant on the use of the defendant's social network is a contract under the law of obligations with elements of a lease, contract for work and services (LG Frankfurt a.M., decision of 10.09.2018 - 2-03 O 310/18, MMR 2018, 770; see also KG Berlin DNotZ 2018, 286 marginal no. 56 with further details; OLG Munich NJW 2018, 3115). The object of this contract is also the rules of conduct provided by the defendant as GTC.
c. The examination of the lack of conformity of the defendant's conduct in consideration and weighing of the conflicting interests in connection with the § 241 para. 2 BGB (German Civil Code) is based on the contractual conditions which have been provided by the defendant since spring 2018. Contrary to the plaintiff's opinion, these have already been effectively agreed upon for the reason that the plaintiff, after his presentation, had not registered with the defendant until March 2019 and thus under the new terms of use.
d. The Terms of Use and the Community Standards referred to therein are contractual terms pre-formulated for a large number of contracts and thus general terms and conditions within the meaning of § 305 (1) BGB (OLG Dresden NJW 2018, 3111; OLG Stuttgart NJW-RR 2019, 35; LG Hamburg, Urt. v. 31.05.2019 - 305 O 117/18, BeckRS 2019, 21755 marginal no. 23).
e. The plaintiff may not demand the restoration of his profile on this basis.
In the present case, it is not materially relevant whether the parties are in dispute here about a contract obligation of the defendant or about a permissible termination of the user relationship by the defendant.
In this respect, the chronological sequence must be taken into account in particular. After the plaintiff's presentation in the statement of claim, it initially appeared as if the plaintiff had been using the defendant's platform for a long time and the defendant had suddenly decided to delete his profile without giving reasons. On the one hand, the plaintiff failed to state that he had only registered with the defendant on March 7, 2019 and that the defendant had indisputably requested the plaintiff to provide proof of his identity and he had not complied with this request.
It also remained undisputed that the defendant's request to the plaintiff was made in direct connection with his registration with the defendant. The plaintiff registered on 07.03.2019, the defendant placed his profile in a "fake account checkpoint" and requested him to provide proof of identity. After the plaintiff failed to comply, the defendant deleted his profile already on March 9, 2019.
aa.
In such a constellation, one may assume that the present dispute between the parties does not revolve around whether the defendant was entitled to delete the contribution and block or delete his profile due to a certain behaviour of the plaintiff, e.g. a statement that was inadmissible under the defendant's terms of use. Rather, the issue in this case could be whether the plaintiff is entitled to claim against the defendant to be able to enter into a contract with the defendant without verification of his identity according to the defendant's terms of use, obliging the defendant to provide him with its services. The core of the dispute could accordingly be whether the defendant is subject to a contract obligation.
In this respect, one could consider it harmless that the defendant only carried out its review after the plaintiff had registered with the defendant's service and subsequently deleted his profile instead of not even admitting the plaintiff to its platform beforehand and not concluding a contract of use. Due to the close temporal connection one could nevertheless assume that here the quasi first-time entrance to the platform of the deplored ones stands in the controversy.
However, the defendant is not subject to a general obligation to contract (OLG Dresden NJW-RR 2020, 429 marginal no. 4; LG Bremen MMR 2020, 426 marginal no. 37; LG Frankfurt a.M., judgement of 03.05.2020 - 2-03 O 411/20). 
If the plaintiff fundamentally refuses to cooperate, the defendant cannot be obliged to conclude a contract of use with him.
But in the end that was not the point.
bb.
Even if one does not assume that an obligation to contract of the defendant is in dispute, but rather the question whether the defendant was allowed to terminate the contract with the plaintiff, this termination would have to be regarded as effective.
In this respect, it is again irrelevant whether the defendant only had an extraordinary right of termination or also an ordinary right of termination according to § 620 para. 2 BGB, which is referred to in section 4.2 para. 2 of its terms and conditions of use, in which it is stated that the right of termination for good cause remains unaffected, from which one can conclude that there should also be a right of ordinary termination.
However, the defendant also had a right to extraordinary termination. Because the plaintiff offended against its obligations from the contract. Section 3.1 of the Terms of Use stipulates that the user is obliged to provide information about himself. Accordingly, it must also be possible for the defendant to be able to verify such information to a reasonable extent (cf. for the enforcement of the terms of use of a rating portal OLG Cologne, Urt. v. 26.06.2019 - 15 U 91/19, P. 26). This is because it can be assumed in principle that a contractual partner may obtain certainty about the identity of his counterpart. Since the defendant here does not know the plaintiff personally and concludes contracts with him only via the Internet, one can assume that it may choose other means to obtain knowledge of the identity of its contractual partner. In this respect, the plaintiff is free not to use the service of the defendant (see OLG Dresden NJW-RR 2020, 429 marginal no. 4; LG Bremen MMR 2020, 426 marginal no. 37) if he does not wish to disclose his identity.
In this respect, the Chamber is aware that maintaining anonymity on the Internet can be very important and Section 13 (6) TMG provides for the anonymous use of Telemedia services. On the one hand, however, the user knows the defendant's service requires him to provide information about his person. This is also stipulated in the terms of use. Whether the plaintiff will claim to remain anonymous in such a case, although the defendant has decided to apply its terms of use to him, can ultimately remain open. Furthermore, the plaintiff is ultimately free to use other social networks that waive the disclosure of identity if he does not wish to meet these requirements.
Because the deplored one offered to that extent here different possibilities to the plaintiff, in order to prove its identity and/or to prove that the again put on account is not a "Fake account". The defendant did not categorically demand the presentation of an identity card - in contrast to the plaintiff - but also considered the presentation of a picture or similar to be sufficient. According to the defendant's undisputed submission, it would even have been sufficient for this purpose if the plaintiff had transmitted a confirmation code from one of his devices, which would not necessarily have entailed the disclosure of his identity.
Here the deplored one decided to examine the identity of the plaintiff and requested him to produce proofs.
Insofar as Section 4.2 of the Terms of Use requires a time limit for remedy or a warning, this was granted by requesting the plaintiff to provide evidence within the set time limit. However, he did not comply with this request.
Even with the argument of the plaintiff's representative at the hearing that § 13 (6) TMG prohibits the use of a clear name, the plaintiff does not succeed. In this respect, it is already questionable whether Section 13 (6) of the German Telemedia Act (TMG) will still be effective after the DSGVO has come into force. According to the parties, however, the present case does not concern the enforcement of the obligation to use clear names. The plaintiff did not claim to have registered with his real name, but only provided an e-mail address. Furthermore, the defendant has shown that it would have accepted the transmission of a picture (without name) or even the sending of a confirmation code from one of its devices in order to verify his identity, so that the plaintiff was not obliged to disclose his name.
Even if the Chamber assumes that the plaintiff registered under a different name or (possibly in accordance with Section 13 (6) of the German Telemedia Act) under a pseudonym, the defendant did not require the plaintiff to designate his profile with his own name, but only that he disclose it to the defendant.
2) In the absence of a breach of duty by the defendant, a claim for damages by the plaintiff is excluded (application to 2), whereby it is not necessary to state whether the plaintiff would be entitled to such a claim at all and in general (cf. negative for the case of the temporary blocking of the user account LG Frankfurt a.M., judgement of 5 March 2020 - 2-03 O 427/18).
3. in the absence of a main claim, there are also no claims for reimbursement of out-of-court attorney fees (application under 3.).
4. the decision on costs is based on § 91 ZPO (German Code of Civil Procedure), as the plaintiff is fully unsuccessful.
5. the decision on provisional enforceability is based on § 709 ZPO.
6. the plaintiff was not to be granted a discount on the written pleadings of the representatives of the defendant of 26.08.2020. It is not evident that the plaintiff could not get involved in the oral proceedings with the plaintiff's written statement, which contained predominantly legal arguments and was only a few pages long. In particular, the week's deadline of § 132 para. 1 ZPO has been observed.

https://www.lareda.hessenrecht.hessen.de/bshe/document/LARE200001580