LG Frankfurt am Main - 2-03 O 48/19
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| LG Frankfurt - 2-03 O 48/19 | |
|---|---|
 | |
| Court: | LG Frankfurt (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 16 GDPR Article 82 GDPR §§ 823, 1004 German Civil Code (Bürgerliches Gesetzbuch - BGB) Art. 1, 2, 12 Basic Law for the Republik of Germany (Grundgesetz - GG) |
| Decided: | 03.09.2020 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 2-03 O 48/19 |
| European Case Law Identifier: | ECLI:DE:LGFFM:2020:0903.2.03O48.19.00 |
| Appeal from: | |
| Appeal to: | |
| Original Language(s): | German |
| Original Source: | Bürgerservice Hessenrecht (in German) |
| Initial Contributor: | n/a |
A Frankfurt court (LG Frankfurt am Main) held that if the operator of a social network restores a user's contribution in response to their complaint, the operator must provide sufficiently serious evidence that unlawful deletion of the user's contribution will not be repeated.
English Summary
Facts
The defendant blocked the plaintiff's contribution on 25.12.2018 (p. 776 of the annex) with the statement that his contribution did not comply with the F-Community standards. The plaintiff filed an appeal against the decision and tried to persuade the defendant to lift the block.
On 27.12.2018 the defendant reactivated the contribution - after a re-evaluation of the disputed mail - with the following words: "We are sorry that we misunderstood this. We have re-examined your contribution and confirmed that it meets our Community standards...". However, the blocking of the plaintiff's profile continued.
Dispute
The plaintiff asks whether the defendant's terms of use for deleting so-called hate messages are invalid. Furthermore, it is questioned whether the Community standards of spring 2018 had become part of the contract. In this respect, the defendant might rely on the amendment clause in clause 13 of the previous terms and conditions, as it violates § 307 (1) sentence 1 BGB or § 308 no. 5 BGB if the forced consent to the amendment of the terms of use was immoral.
Holding
The court held that if the operator of a social network deletes a contribution and blocks the user, but restores the contribution in response to the user's complaint, the risk of recurrence is not immediately absent. The operator cannot invoke a "free shot". Instead, the principles developed in the case law on rectification are to be applied to such a constellation.
If the operator restores the contribution in response to the complaint, it must provide sufficiently serious evidence that its (unlawful) conduct will not be repeated. This is not sufficient if the user's block is not also lifted. It could remain open here whether in such a case the operator is at all entitled to block the user immediately after deletion of the contribution.
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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: LG Frankfurt 3rd Civil Chamber
Decision date: 03.09.2020
File number: 2-03 O 48/19
ECLI: ECLI:DE:LGFFM:2020:0903.2.03O48.19.00
Document type: Judgment
Source: Hesse
Standards: § 823 BGB, § 1004 BGB, art. 1 GG, art. 2 GG, art. 12 GG ... more
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Short textLong text
No "free shot" for the operator of a social network in case of deletion and blocking
Guiding principle
1.
If the operator of a social network deletes a contribution and blocks the user, but restores the contribution in response to the user's complaint, the risk of recurrence is not immediately absent. The operator cannot invoke a "free shot". Instead, the principles developed in the case law on rectification are to be applied to such a constellation.
2.
If the operator restores the contribution in response to the complaint, it must provide sufficiently serious evidence that its (unlawful) conduct will not be repeated. This is not sufficient if the user's block is not also lifted. It could remain open here whether in such a case the operator is at all entitled to block the user immediately after deletion of the contribution.
Note
contestable
Tenor
1) The defendant is ordered to refrain from enforcing administrative detention of its management board members for each offence, avoiding an administrative fine of up to EUR 250,000.00 or, alternatively, administrative detention for up to 6 months,
"Thank you for your beautiful and very fitting words! It is always frightening for us too to realize that most Germans are Nazis - but we will never give up and will only stop when everything that reminds us of the German being has been erased from our minds! Never again shall anything in Germany or German culture remind us!
2) The defendant is ordered to compensate the plaintiff for legal fees for the extrajudicial activity amounting to EUR 334.75 by payment to the law firm ... to the law firm.
3. dismisses the remainder of the action
4) The applicant is ordered to pay 65% of the costs of the proceedings and the defendant 35%.
5. the judgment is provisionally enforceable, for the plaintiff in respect of the claim in point 1 against a security of EUR 3,000 and otherwise against a security of 110% of the amount to be enforced in each case. Furthermore, the plaintiff may avert enforcement by providing security in the amount of 110% of the amount to be enforced on the basis of the judgment, unless the defendant provides security in the amount of 110% of the respective amount to be enforced prior to enforcement.
Facts of the case
The parties are in dispute over the admissibility of the deletion of a contribution, the blocking of the plaintiff's account, information, damages and pre-trial legal fees in connection with a contribution made by the plaintiff to F.
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 based in Dublin, Ireland. The use of the social network F is based on a one-time registration with clear data.
Since 2008, the plaintiff has been a user of the service offered by the defendant and administrator of the F site "M".
The defendant provides the users with terms and conditions of business which consist, inter alia, of the conditions of use (Annex K1 = pp. 163 et seq., loc. cit.) and the Community standards (Annex K3 = pp. 96 et seq., loc. cit.).
The Community Standards No. 12 in the version of spring 2018 states, among other things (emphasis added by the Court)
"12. hate speech
We do not allow hate speech in F. Hate speech creates an environment of intimidation, excludes people and in certain cases can promote violence in the real world.
We define hate speech as a direct attack on persons based on protected characteristics: ethnicity, national origin, religious affiliation, sexual orientation, gender, gender identity, disability or illness. Immigration status is also a protected characteristic to a certain extent. We define assault as violent or dehumanising language, statements of inferiority or calls to exclude or isolate people. We classify attacks into three levels of severity as described below.
Sometimes people share content containing hate speech of other people in order to raise awareness or provide education on a particular issue. For example, words or terms that would otherwise violate our standards may be used to explain or express support. In such cases we allow the content to be used, but expect the person sharing such content to make their intention clear so that they can better understand the background. If this intention is unclear, the content may be removed.
We allow humour and social criticism in connection with these topics. We also believe that users who share such comments act more responsibly when using their real names.
The following contents are prohibited:
Severity 1 attacks are attacks aimed at a person or group of persons who meet any of the above characteristics or immigration status (including all sub-groups, except those who have committed violent or sexual crimes). An attack is defined here as follows:
- Any violent expression or support in written or visual form
- Dehumanising language or images. These include the following:
...
Severity 2 attacks are attacks aimed at a person or group of persons who meet one of the above characteristics. An attack is defined here as follows:
- statements of inferiority or images which imply that a person or group of persons has physical, mental or moral deficiencies
- Physical (including "deformed", "underdeveloped", "hideous", "ugly")
- Mental (including "retarded", "disabled", "low IQ", "stupid", "idiot")
- Moral (including "bitch", "cheat", "cheap", "scrounger")
- Expressions of contempt or their pictorial equivalent, such as
...
Severity 3 attacks are attacks that call for the exclusion or isolation of a person or group of persons on the basis of the above characteristics. We allow criticism of immigration laws and discussion of the limitations of these laws.
Content that describes persons in a disparaging manner or attacks them with disparagement. Insults are defined as expressions or words that are commonly used as insulting terms for the above characteristics.
Previously, the plaintiff had referred to old Community standards according to Annex K 22, pp. 126 ff., 136 d.A. These standards state, inter alia
"[The defendant] removes all hate messages, i.e. content which directly attacks persons on the basis of the following characteristics:
- race,
- Ethnicity,
- National origin,
- Religious affiliation,
- Sexual orientation,
- Gender or gender identity or
- Severe disability or illness".
For the details of the defendant's Community standards in the version of 08.10.2019, which now contains the definition of hate speech in point 11, reference is made to Annex B 25.
The defendant informed the plaintiff on 19 April 2018 that it had updated its conditions and guidelines. The plaintiff was given the opportunity to review them and was informed of the consequences of non-acceptance. However, the plaintiff was not able to use the service, or not fully use it, before consent was given. In that regard, the defendant made the continued use of its service conditional upon the acceptance of the updated terms and conditions of use. The plaintiff expressly agreed to the updated conditions on 24.04.2018 (Annex B 41).
On 23.12.2018 at 19.03 hrs, the following article (Annex B 41) was posted on page "M" at F (Annex B 19):
"M" will boycott Christmas again this year. We do not celebrate German-Christian shit-shit traditions that deliberately exclude Muslim people. Tomorrow evening we will first go to "Al-Arabiyya", our favourite Moroccan. And during the holidays we will boost the sales of the surrounding kebab stands. Of course, we will also be drinking like crazy. There is no other way to bear this monocultural festival of exclusion. Blow the head off against Germany! #BoycottChristmas #FCKAfD #we are more".
One user commented on this after a mail from another user: "Haha, fully broken", as follows according to sheet 20 of this issue:
"What's kaput about the fact that these people have a little more sense than most, because they are right! It's just hard to bear in this xenophobic Germany and all the misery in the world...".
On 24 December 2018, the plaintiff posted the following contribution - which is the subject of the dispute - on the platform of the defendant in accordance with page 15 of the statement of claim (p. 17 and p. 776 of the German version):
"@W Thank you for your beautiful and very fitting words! It is always frightening for us too to realize that most Germans are Nazis - but we will never give up and will only stop when everything that reminds us of the German being has been erased from our minds! Never again shall anything remind us of Germany or German culture!
The defendant blocked the plaintiff's contribution on 25.12.2018 (pg. 776 of the German version) with the remark that his contribution did not comply with the F-Community standards. The plaintiff filed an appeal against the decision and tried to persuade the defendant to lift the block.
On 27.12.2018 the defendant reactivated the contribution - after a re-evaluation of the disputed mail - with the following words: "We are sorry that we misunderstood this. We have re-examined your contribution and confirmed that it meets our Community standards...". However, the blocking of the plaintiff's profile continued.
On 02.01.2019 the plaintiff turned to his local representatives. They obtained a cover note from the legal protection insurance for the extrajudicial and judicial activities. The plaintiff is requesting exemption from legal fees for the out-of-court activity in the amount of EUR 597.74 and for obtaining the cover note for the court proceedings in the amount of EUR 729.23. The plaintiff requested the defendant in a lawyer's letter dated 09.01.2019 (Annex K 13, pp. 173 et seq. of the German version) to lift the blockage, among other things.
The plaintiff is of the opinion that the defendant's terms of use for deleting so-called hate messages are invalid. The Community standards of spring 2018 had not become part of the contract. In this respect, the defendant cannot rely on the amendment clause in clause 13 of the previous terms and conditions, as it violates § 307 (1) sentence 1 BGB or § 308 no. 5 BGB. The forced consent to the amendment of the terms of use was immoral.
The applicant's contribution does not infringe the defendant's Community standards and does not constitute hate speech. The challenged statement by the plaintiff was a permissible expression of opinion. In the political context, the term "Nazi" is an abbreviation for National Socialist. Although its use could contain a disparaging assessment, in the end, however, in the given context it was rather an accusation of political extremism as well as the increasing xenophobia towards refugees. A disparagement or abuse of a person or even a group of persons was out of the question from the outset due to the lack of reference to a specific person or at least a definable, individualisable group of persons.
There is no attack in accordance with the defendant's Community standards. The statement does not attack anyone on account of their origin or ethnicity or other characteristics mentioned therein. Rather, the text only represents agreement with the view of another user, which is becoming increasingly xenophobic towards Germany. The "Germans" mentioned there would not be attacked because of their origin or similar, but because of their behaviour and attitudes. The article also conveys to the fleeting average reader that it represents a critical examination of the behaviour and views of some Germans with regard to how they deal with the reception of refugees or the refugee debate. The plaintiff does not imply with his contribution that all Germans without exception are "Nazis". It is a permissible value judgement. The purpose of the hate speech paragraph is to protect minorities, which is obviously not the case with the group of "Germans". Critical comments on the current attitude of many Germans towards immigration were permissible as a debate on the matter.
The defendant's conditions - both in the old and the new version - were not transparent and thus ineffective. It is hardly transparent for the user which sanctions a violation of Community standards would incur. There is also undue discrimination. There was also a breach of Paragraph 138(1) of the BGB.
The blocking of the account constituted an unlawful interference with the plaintiff's general right of personality.
The application for a declaratory judgement pursuant to Paragraph 1 is not an abstract application for a declaratory judgement in preparation for a subsequent, further application for performance, but an application for a continuation of the proceedings, which is intended to clarify the lack of conformity of the defendant's conduct. Alternatively, the plaintiff would be entitled to a data correction claim against the defendant under Article 16 DSGVO.
The plaintiff was also entitled to injunctive relief against the defendant under the contract of use pursuant to § 241 (2) BGB in conjunction with § 241 (2) of the German Civil Code (BGB). § Section 1004 of the Civil Code by analogy and a claim for compensation or damages as a fictitious licence fee or under Article 82(2) of the DSGVO on account of inadmissible data processing. The damage caused by the refusal to use the network was to be assessed at EUR 50 per day.
The plaintiff applies (after partial withdrawal of the application for reimbursement of pre-litigation lawyer's fees for obtaining the confirmation of coverage under 6.b),
1. declare that the blocking of the plaintiff's profile (https://www.F.com/S) on www.F.com on 24 December 2018 was unlawful
in the alternative,
in the event that the Court of First Instance should find that there is no interest in finding the facts,
order the defendant to correct the applicant's data in such a way that the existence of a breach of the conditions of use is removed from the record by the contribution deleted on 24.10.2018 and the counter recording the number of breaches is reset by one breach
2. order the defendant to refrain from re-blocking the plaintiff for posting the following text on www.F.com or from deleting the contribution if it relates to a contribution about a stabbing in an asylum seekers' home In the event of an offence, a fine of up to EUR 250,000 or, alternatively, administrative detention or the threat of administrative detention will be imposed on the members of the Management Board,
"Thank you for your beautiful and very fitting words! It is always frightening for us too to realize that most Germans are Nazis. But we will never give up and will only stop when everything reminds us of the German being, has been erased from our minds! Never again shall anything remind us of Germany or German culture!
3. order the defendant to provide the plaintiff with information as to whether the blockage pursuant to clause 1 was carried out by a commissioned company, and in the latter case, by which,
4. order the defendant to provide the plaintiff with information as to whether it has received concrete or abstract instructions, notices, advice or any other suggestions from the Federal Government or subordinate departments with regard to the deletion of contributions and/or the blocking of users, and if so, which ones,
5. order the defendant to pay the applicant damages of EUR 1 500 plus interest at 5 percentage points above the base rate since 24 December 2018
6. order the defendant to pay the applicant's legal fees
a. for the extrajudicial activity in the amount of EUR 597.74; and
c. for obtaining a cover note for the action amounting to EUR 729.23
by payment to the law firm ... to the law firm.
The defendant claims that the Court should
dismiss the action.
The defendant challenges the inadmissibility of paragraph 1 of the application on the ground of the priority of the action for performance.
The defendant takes the view that its Community standards serve to strike a fair balance between the freedom of expression of users and the interests of the Community and the interests of the defendant. The Community standards are sufficiently clear and transparent and are effective and enforceable. The amendment of the conditions of use was effective.
It is sufficient for a contribution to be admissible for it to be deleted if, from the point of view of an average fugitive reader, it can reasonably be interpreted as an infringement of the defendant's rules and guidelines.
The statement made by the plaintiff in the article in question referred to "Germans" in general as "Nazis" and thus as right-wing extremists, anti-Semites, racists and generally horrible people. Contrary to the provisions in the Community standards, in particular on so-called hate speech, this statement had - at the time of the initial assessment, justifiably - created the appearance of expressing contempt for Germans in general or for all Germans and of attacking a group of people on the basis of their national origin. According to the complainant, the post office included a derogatory choice of words and appeared to express contempt and disgust towards Germans as a group. The unfounded description of "most" Germans as "Nazis" was presented as an insulting attack which contained expressions of disgust and hatred towards a group of people.
The interests of the plaintiff in the publication of apparently harmful content, such as the contribution at issue here, could not outweigh the rights of the defendant, who would have an interest worthy of protection in working towards a civilised culture of communication.
The defendant was entitled temporarily to block the applicant's account for certain functions when the post in question was removed.
The alternative claim to the first plea in law is unfounded. First, the data were not incorrect and, second, the request was unfounded, since the defendant had revised its original decision and restored the mail.
As regards the claim for an injunction, the applicant submits in particular that there is no risk of repetition. The applicant has not suffered any damage either. The application in question is also inadmissible because it is not sufficiently specific.
The defendant initially refused to accept service because the documents had not been translated (p. 383 of the application). The plaintiff then applied for a judgment by default in a written statement dated 08.08.2019 (pp. 288 et seq., German version). Before a possible judgement by default was issued, the defendant indicated its readiness to defend in a written statement dated 23 August 2019 (pp. 348 et seq., German version), 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 the other contents of the file.
Grounds for the decision
I.
The action is admissible in part only.
The LG Frankfurt a.M. has international and local jurisdiction. This is not in dispute between the parties, so that it can be assumed that the court seised has jurisdiction in any case on the basis of a statement without objections pursuant to Art. 26 (1) sentence 1 of the Brussels Ia Regulation 1215/2012 (cf. also BGH NJW 2018, 3178 marginal no. 16).
The claim under No. 1, which is directed at a declaratory finding that the cancellation of the plaintiff's contribution is unlawful, is inadmissible under § 256 (1) of the German Code of Civil Procedure (ZPO), since it does not seek a declaration of a current legal relationship and the plaintiff has no interest in a declaratory finding.
Admittedly, this does not already follow from the fact that the action would only be directed at establishing a preliminary question or an element of a legal relationship, even if, in principle, mere elements or preliminary questions of a legal relationship, pure facts or, for example, the unlawfulness of conduct cannot be the subject of an action for a declaratory judgment (see BGH NJW-RR 2015, 915). For the interpretation of the application for a declaratory judgment on point 1. shows that it aims to establish that the defendant had no right to block the plaintiff's user account, i.e. to establish the non-existence of a legal relationship within the meaning of § 256 (1) ZPO (Munich Higher Regional Court, order of 22 August 2019 - 18 U 1310/19, BeckRS 2019, 26477).
However, the necessary interest in declaratory judgment is lacking. In principle, an action for a declaratory judgement can only be based on the existence or non-existence of a current legal relationship. An interest worthy of protection in the determination of a past legal relationship can only be considered in exceptional cases if the determination may still have legal consequences for the present and the future (BGH NJW-RR 2016, 1404; Zöller/Greger, ZPO, 33rd ed. 2020, § 256 marginal no. 3a). Since the present motion for a declaratory judgment relates to a measure taken by the defendant which has been undisputedly terminated, the admissibility of the motion depends on whether the plaintiff still has a legitimate interest in the declaratory judgment that the defendant was not allowed to "block" plaintiff's accounts. This is not the case here.
In this respect, the plaintiff has submitted that the contested blocking will continue to be recorded in the defendant's system in the plaintiff's data record even after its expiry (p. 71 of the annex) and will be taken into account in the imposition of sanctions in the event of future violations of Community standards. However, the plaintiff could or would have to assert a possible claim for removal of this note by submitting a corresponding claim for benefits. The mere determination of the unlawfulness of the block would not yet lead to the removal of the note from the plaintiff's data set (cf. also OLG Munich, decision of 22 August 2019 - 18 U 1310/19, BeckRS 2019, 26477 marginal no. 7; cf. also OLG Dresden, decision of 11 December 2019 - 4 U 1680/19; LG Frankfurt a.M., judgement of 5 March 2020 - 2-03 O 411/18).
II.
According to the second plea in law, the plaintiff has a claim against the defendant for an injunction not to block or delete again the contribution in dispute from the contract concluded between the parties pursuant to section 241 (2) BGB in conjunction with section 1004 BGB by analogy. This is because the deletion of the plaintiff's contribution by the defendant was unlawful.
a. The asserted claims are to be assessed under German law pursuant to Art. 3 (1), Art. 6 (2) of the Rome I Regulation 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. The parties have concluded a contract on the use of the defendant's social network, which is a contract under the law of obligations with elements of the lease, contract for work and services (LG Frankfurt a.M., decision of 10 September 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 subject matter of this contract is also the rules of conduct provided by the defendant as GTC.
c. The basis for the claim of the user of a social media platform to refrain from deleting a text contribution posted by him on the platform as well as the blocking based on this is the claim for performance from the contract, by which the platform operator undertakes to enable the user to use the services offered by it, in conjunction with § 241 para. 2 BGB and the indirect third-party effect of the user's fundamental right to freedom of opinion (Art. 5 Para. 1 GG) (OLG Munich, decision of 22.08.2019 - 18 U 1310/19, BeckRS 2019, 26477 marginal no. 7 with further details; see also LG Frankfurt a.M., Decision of 10 September 2018 - 2-03 O 310/18, MMR 2018, 770). The same must also apply to the user's claim to reactivate a deleted text contribution on the platform if the deletion was carried out in violation of the user's fundamental right to freedom of opinion and thus unjustified or illegal.
d. The examination of the non-conformity of the defendant's conduct with the contract, taking into account and weighing up the conflicting interests in connection with § Section 241(2) of the German Civil Code is based on the contractual terms and conditions which have been submitted by the defendant since spring 2018. Contrary to the opinion of the plaintiff, these have been effectively agreed in the form of a contractual amendment.
In this context, it may be questionable whether the amendment of the GTCs would have been possible on the basis of the amendment clause in section 13 of the previous terms of use or whether this clause violates § 307 BGB in conjunction with the evaluations to be derived from § 308 No. 4 and 5 BGB. This is because the amended terms of use have become effective in the present case with the consent of the plaintiff.
It is undisputed between the parties that the defendant informed the plaintiff on 19.04.2018 that it had updated its conditions and guidelines and that the plaintiff expressly agreed to the updated conditions on 24.04.2018.
The notification received by the plaintiff when calling up the defendant's service about the intended change of the terms and conditions of use in conjunction with the request to accept them by clicking a button is to be regarded as an offer to conclude an amendment agreement within the meaning of § 145 BGB. A contract concluded by clicking on a button has in principle an individual character, even if the declarations of intent of which it is composed have pre-formulated components. In such a case, the new version of the GTC is not included on the basis of a pre-formulated amendment clause but on the basis of an amendment contract concluded between the parties in accordance with general rules on declarations of intent and legal transactions (MünchKommBGB/Basedow, 8th edition 2019, § 305 marginal 86, 90). The plaintiff has accepted this individual offer within the meaning of § 145 BGB.
Contrary to the plaintiff's opinion, the offer forced on him either to accept the terms of use or to terminate his contract with the defendant is also not to be considered immoral. Even though the defendant may have an outstandingly important position in the field of social networks in Germany, it is not subject to any obligation to contract, but is free to choose its contractual partners within the framework of general prohibitions of discrimination (LG Frankfurt a.M., Judgement of 03.09.2020 - 2-03 O 282/20; OLG Dresden NJW-RR 2020, 429 marginal no. 4; LG Bremen MMR 2020, 426 marginal no. 37; LG Frankfurt a.M., judgement of 05.03.2020 - 2-03 O 411/20). On the other hand, however, it is also not apparent why the acceptance of the amended conditions should be so unreasonable for the plaintiff that a de facto forced consent should be regarded as immoral. On the contrary, the clarification made by the amendment, inter alia, of the concept of hate speech and the sanctions regime applicable in the event of violations, favours the users because it limits the plaintiff's discretion to delete contributions compared to the previous version (see OLG Dresden AfP 2020, 56, 57 with further references). It is also not apparent that the amendment imposed on the plaintiff would have created an unlawful coercive position for the plaintiff. The amendment of the conditions was therefore permissible (also OLG Dresden AfP 2020, 56, 57; OLG Karlsruhe, order of 18 December 2018 - 7 W 66/18; LG Bremen, judgement of 20.06.2019 - 7 O 1618/18, BeckRS 2019, 12419; LG Frankfurt a.M., judgement of 05.03.2020 - 2-03 O 411/18).
e. 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 of business within the meaning of § 305 Para. 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).
The definition of "hate speech" laid down in No. 12 of the Community Standards, which is the subject of the dispute here, and the sanction in No. 3.2 of the Terms of Use which is linked to it do not violate § 307 (1) sentence 2 or (2) BGB.
Clause 3.2 of the Terms of Use links the removal of contributions and the other sanctions regulated there to a violation of the Terms of Use, the Community standards and other conditions and guidelines of the defendant of F and thus to criteria that can in principle be objectified. The reference to the other terms and conditions, also available on the defendant's website, does not render the clause opaque. A - also dynamic - reference to further sets of rules does not prevent the transparency of a regulation (OLG Dresden NJW 2018, 3111).
Paragraph 12 of the Community standards contains a detailed definition, written in easily understandable language, of the concept of hate speech adopted from the Anglo-American language area. The fact that the attacks included here include not only formal insults and abusive criticism, but also expressions of opinion which are permissible as a consequence of freedom of opinion under Article 5.1 of the Basic Law, does not affect the transparency of the provision. The user who takes note of paragraph 12 of the Community standards will recognise that any kind of violent and dehumanising language, including "statements of inferiority or calls to exclude persons" may be punishable by a sanction, as paragraph 3.2 of the Terms of Use does not provide for any restriction in this respect. It may not be possible for him to understand the meaning of the division into three degrees of severity, because neither the Community standards nor the Terms of Use provide for a sanctions regime graded according to these degrees of severity. However, he will draw the conclusion from this that the sanctions provided for in clause 3.2 of the Terms of Use can be imposed irrespective of these degrees of severity (OLG Dresden NJW 2018, 3111). Accordingly, the defendant's terms and conditions of use are predominantly regarded as effective in case law (cf. also OLG Karlsruhe MMR 2020, 52 marginal no. 29 et seq.; KG Berlin, order of 09.01.2020 - 10 W 29/19).
Nor is there any surprising clause within the meaning of § 305c BGB (see in this respect OLG Dresden NJW 2018, 3111 marginal no. 15 with further details; OLG Dresden AfP 2020, 56; OLG Karlsruhe MMR 2020, 52 marginal no. 35). In principle, the operator of a social network can also enforce its rules of conduct by removing unlawful content or by blocking a user account (LG Frankfurt a.M., decision of 10 September 2018 - 2-03 O 310/18, MMR 2018, 770; Schwartmann/Ohr in Schwartmann, Praxishanduch IT-, Urheber- und Medienrecht, 4th ed. 2018, ch. 11, marginal no. 40; cf. on an F-page also VG München, judgement of 10 September 2018, para. 3111, marginal no. 15 with further details; OLG Karlsruhe MMR 2020, 52 marginal no. 35). 27.10.2017 - M 26 K 16.5928).
f. The deletion of the plaintiff's contribution was unlawful.
aa.
According to the consistent case-law of the Federal Constitutional Court, fundamental rights have an indirect third-party effect inasmuch as the Basic Law, in its section on fundamental rights, has at the same time established elements of objective order which, as a fundamental decision under constitutional law, are valid for all areas of law and thus also influence private law (BVerfG NJW 1987, 827 marginal no. 25; BVerfG NJW 1958, 257 marginal no. 26). In this function, the fundamental rights do not aim at the most consistent minimisation of encroachments that restrict freedom, but must be developed in a balance of equal freedom. In this context, conflicting fundamental rights positions must be taken into account in their interaction and balanced out in accordance with the principle of practical concordance in such a way that they are as effective as possible for all parties involved (cf. BVerfG NJW 2018, 1667 marginal no. 32 - stadium ban with further references).
The legal content of the fundamental rights as objective norms unfolds in private law through the medium of the provisions directly dominating this area of law, in particular the general clauses and other terms that are open to interpretation and require interpretation and must be interpreted in the sense of this legal content (BVerfG NJW 1987, 827 marginal no. 25). In the present case, the provision of § 241.2 of the Civil Code constitutes the general clause that needs to be concretised, the interpretation of which must take account of the fundamental right to freedom of expression asserted by the plaintiff (Article 5.1 of the Basic Law).
According to Art. 5 (1) 2 of the Basic Law, the fundamental right of freedom of opinion finds barriers (alone) in the provisions of general laws, in the statutory provisions for the protection of young people and in the right to personal honour, although according to the "Lüth" case-law of the Federal Constitutional Court, there is an interaction between the scope of protection and the barriers in such a way that, although the barriers set limits to the wording in accordance with the fundamental right, they must themselves be interpreted on the basis of the recognition of the fundamental significance of this fundamental right in a free and democratic state and thus themselves be restricted again in their effect of limiting the fundamental right (BVerfGE 7, 198, 208 et seq. - Lüth; Maunz/Dürig-Grabenwarter, GG, 82nd EL 2018, Article 5(1) marginal no. 139). In this context, it should be noted that the fundamental rights here have an indirect effect on the relationship between the parties and that the other fundamental rights affected in the individual case must therefore also be included in the constitutionally prescribed weighing of interests (Maunz/Dürig-Grabenwarter, loc.cit., Article 5(1) marginal no. 145 with further references). In order to assess the defendant's conduct, therefore, its interests, which are protected by fundamental rights, must also be taken into account and weighed up.
With regard to a specific statement, the defendant's interest in the operation of its platform, which is protected by Article 12 (1) of the Basic Law, must therefore be taken into account when assessing the indirect effect of the fundamental rights (LG Frankfurt a.M., decision of 10 September 2018 - 2-03 O 310/18, MMR 2018, 770 with further reference). As a result, the conflicting interests are to be reconciled as gently as possible by means of practical concordance.
Accordingly, the prerequisite for such a block is first of all that the exclusion is objectively justified and not arbitrary (LG Frankfurt a.M., decision of 10.09.2018 - 2-03 O 310/18, MMR 2018, 770 m.w.r.). According to these provisions, a ban can also be justified under Article 5 (1) of the Basic Constitutional Law, taking into account the freedom of opinion available to the person making the statement, if the person making the statement has repeatedly committed the offence and has thus both violated the rights of other users and disturbed the course of the discussion in the long term. In this context, consideration may also be given to whether the behaviour of the person making the statement is suitable for preventing further objective discussion or keeping other users away. In case of sustained, insulting behaviour, the operator shall not be obliged to continue to tolerate the user (LG Frankfurt a.M., decision of 10.09.2018 - 2-03 O 310/18, MMR 2018, 770 m.w.N.).
In application of these principles and in consideration of the respective interests of the parties, the deletion of a contribution can therefore be regarded as justified in any case if it is to be regarded as "hate speech" within the meaning of the defendant's community conditions (LG Frankfurt a.M., decision of 10 September 2018 - 2-03 O 310/18, MMR 2018, 770 m.w.n.; also OLG München NJW 2018, 3115; OLG Stuttgart, judgement of 23.01.2019 - 4 U 214/18, BeckRS 2019, 5526; OLG Dresden NJW 2018, 3111; OLG Dresden AfP 2020, 56; KG Berlin, decision of 09.01.2020 - 10 W 29/19; LG Bremen, judgement of 20.06.2019 - 7 O 1618/18, BeckRS 2019, 12419).
ibid.
The first step in the assessment is to determine the meaning of the statement.
In principle, the decisive factor in determining the content of the statement is not the meaning that the person making the statement wanted to attach to it, but the meaning objectified in the statement, which is to be determined by interpretation (BVerfGE 82, 43, 51 et seq.; BVerfG NJW 2005, 1341 - hostile to enforcement; BGH NJW 1982, 1805 - Schwarzer Filz; Löffler/Steffen, PresseR, 6th ed. 2015, § 6 margin no. 90 with further details).
The interpretation must always be based on the wording of the statement, which does not, however, conclusively define its meaning. Rather, the meaning is also determined by the context in which the disputed statement is placed and by the accompanying circumstances under which it falls, insofar as these are recognisable to the recipient (BVerfG NJW 1995, 3303). The accompanying photojournalism is to be consulted for the interpretation of the verbatim report. The statement may not be taken out of the context of its relevance and considered in isolation (BGH NJW 2009, 3580; NJW 2009, 1872; NJW 2005, 279; NJW 1994, 915). Distant interpretations must be excluded. If the meaning is unambiguous on the basis of this yardstick, it must be used as the basis for further examination. If, however, it turns out that an impartial and understanding audience perceives the statement as ambiguous, or if considerable parts of the audience understand the content differently in each case, the further examination must be based on the assumption of ambiguous content (BVerfG NJW 2006, 207 marginal no. 31 - Stolpe; on the above as a whole, cf. 22.08.2017 - 18 U 1632/17, BeckRS 2017, 127834).
In this context, the understanding of the recipient to whom the statement is directed, taking into account the circumstances that are perceptible to him or her and that help determine the meaning of the statement, must be taken into account (BVerfGE 93, 266, 295 - Soldaten sind Mörder II; BVerfG NJW 2003, 1303 - Benetton-Werbung; Löffler/Steffen, loc. cit.) The decisive factor here is the average reader (Löffler/Steffen, loc.cit., § 6 marginal 90 with further details).
The overall context as a prerequisite for the correct legal assessment of the specific statement - and thus also the alleged unlawfulness of the deletion/blocking - must be presented and proven in accordance with the general principles of the burden of presentation and proof by the plaintiff who wants to derive claims against the defendant from this (OLG Munich, Beschl. of 22 August 2019 - 18 U 1310/19, BeckRS 2019, 26477 marginal no. 14; cf. also OLG Cologne, order of 18 October 2018 - 15 W 57/18, K&R 2018, 803 = BeckRS 2018, 26063).
cc.
The following statement by the plaintiff, which is the subject of the dispute, is an expression of opinion, as the judgmental and opinionated part predominates. It is also not to be regarded as an abusive criticism.
"Thank you for your beautiful and very appropriate words! It is always frightening for us too to realize that most Germans are Nazis. But we will never give up and will only stop when everything reminds us of the German being, has been erased from our thoughts! Never again shall anything remind us of Germany or German culture!
The plaintiff thereby expresses the view expressed by another user that there is a high level of xenophobia in Germany, especially towards refugees. He deals with the accusation of political extremism. as well as the increasing xenophobia towards refugees. The statement that most Germans are "Nazis" is an assessment which, if only because of the lack of reference to a specific person or at least a definable, individualisable group of people, does not constitute a disparagement or insult to a person or even group. The article also conveys to the fleeting average reader that it represents a critical examination of the behaviour and views of some Germans with regard to how they deal with the reception of refugees or the refugee debate.
Expressions of opinion are only to be treated as inadmissible if they cross the line into abusive criticism. Basically, abusive criticism is only present if a statement lacks any factual reference, if the debate on the content is withdrawn and if the focus is on defamation, which is primarily intended to reduce the level of criticism beyond polemical and exaggerated criticism (BVerfG NJW 2016, 2870; OLG Frankfurt NJW 2013, 798, 799; Wenzel/Burkhardt/Peifer, Das Recht der Wort- und Bildberichterstattung, 6th ed. 2018, Chapter 5 marginal no. 97) and the attack on the person concerned is no longer understandable even from the point of view of the critic and taking into account his or her commitment to the cause (BVerfG NJW 1991, 95 - Zwangsdemokrat; BVerfG NJW 1993, 1462 - Böll/Henscheid; BVerfG NJW 1994, 2413 - Kassenarzt; BGH NJW 1987, 1400 - Oberfaschist; BVerfG NJW 1983, 1415 - Designation of the CSU as "NPD Europas"; Soehring/Hoene, Presserecht, 6. 2019, § 20 marginal 9a; Löffler/Steffen, loc. cit, § 6 recital 190).
These conditions are not met here. The context of the statement, also with regard to the previous contribution by user W, is, to the court's conviction, a critical examination of the exclusion and xenophobia towards refugees, especially in politically right or "right-wing" countries. right-wing extremist circles, which the plaintiff describes as "Nazis" (cf. in this respect also OLG Hamburg, NJW 1992, 2035, which regarded the designation of a religious community as a "Nazi sect" as an expression of opinion which did not cross the line into abusive criticism; Wenzel/Burkhardt/Peifer, loc. cit, para. 5 marginal nos. 98, 101).
dd.
In application of the above principles, the plaintiff's statement is also not to be regarded as "hate speech".
The defendant defines "hate speech" as follows
"We define hate speech as a direct attack on persons based on protected characteristics: ethnicity, national origin, religious affiliation, sexual orientation, gender, gender identity, disability or illness. Immigration status is also to some extent a protected characteristic. We define assault as violent or dehumanising language, statements of inferiority or calls to exclude or isolate people. We classify attacks into three levels of severity as described below.
The following contents are prohibited:
Severity 1 attacks are attacks aimed at a person or group of persons who meet any of the above characteristics or immigration status requirements (including all sub-groups except those who have committed violent or sexual crimes). An attack is defined here as follows:
- Any violent expression or support in written or visual form
- Dehumanising language or images. These include the following:
... [Violent and sex offenders; other offenders ]
Attacks with severity level 2 are attacks that are aimed at a person or group of persons to whom one of the above characteristics applies. An attack is defined here as follows:
- statements of inferiority or images that imply that a person or group of persons has physical, mental or moral deficiencies
- Physical (including "deformed", "underdeveloped", "hideous", "ugly")
- Mental (including "retarded", "disabled", "low IQ", "stupid", "idiot")
- Moral (including "bitch", "cheat", "cheap", "scrounger")
- Expressions of contempt or their pictorial equivalent, such as
...
Severity 3 attacks are attacks that call for the exclusion or isolation of a person or group of persons on the basis of the above characteristics. We allow criticism of immigration laws and discussion of the limitations of these laws.
Content that describes persons in a disparaging manner or attacks them with disparagement. Insults are defined as expressions or words that are commonly used as insulting terms for the above characteristics.
These requirements are not met in the present case by the statement in dispute.
It is true that the plaintiff in his statement refers to a "national origin" or "ethnic affiliation" of the protected characteristics from the defendant's conditions, namely the "Germans".
However, an attack in accordance with the defendant's community standards does not exist. No one is attacked by the statement because of his or her origin or ethnicity or other characteristics mentioned there. The text is rather to be understood in the overall context as agreement with the previous user's view that Germany or its citizens were becoming increasingly xenophobic. The "Germans" mentioned there are not attacked because of their origin, but because of their behaviour and attitudes.
The Chamber shares the plaintiff's assessment that his contribution does not imply that all Germans without exception are "Nazis". It is permissible to express a critical view of the current attitude of many Germans towards immigration as a debate on the matter. This assessment was apparently also shared by the defendant when it reactivated the contribution on 27 December 2018 and confirmed in writing that the contribution met its community standards.
After all, the defendant was not able to use the statement of objections as a reason for the deletion, already due to its own conditions. Contrary to the defendant's assessment, even the fleeting average reader did not have to get the impression that the plaintiff wanted to express contempt towards all or most Germans as a group.
Accordingly, the plaintiff can also demand that the statement in dispute not be deleted. Reference is made to the above statements on the unlawfulness of the deletion.
There is also the risk of repetition necessary for the claim for injunction. As a rule, the first inspection indicates the risk of repetition (consistent case law BGH, NJW 2018, 3506 marginal no. 26 - direct mailing; BGH, NJOZ 2018, 194 marginal no. 17; in each case with further references). In general, the risk of recurrence can be refuted by issuing a declaration of discontinuance subject to a penalty (BGH, NJOZ 2018, 194 marginal no. 17), which, however, was refused by the defendant. The defendant thus shows that there is still a risk of recurrence (cf. BGH, GRUR 1998, 1045, 1046 - Brennwertkessel).
In this respect, the defendant refers to the fact that there is no risk of recurrence because, in response to the plaintiff's complaint, it restored the contribution in dispute. In view of the large number of contributions published on its platform, it must be given the possibility of first deleting contributions and (only) restoring them after a complaint.
Even under the impression of the case-law cited by the defendant (see OLG Hamm, judgement of 5 March 2020 - I-4 U 113/19, submitted as Annex B109, p. 961), the Board does not follow this. As a result, the defendant pleads here for a kind of "free shot" in assessing the unlawfulness of contributions on its platform. In this context, the Chamber certainly recognises that the defendant or the employees deployed by it have to evaluate contributions in a short period of time and have to make difficult decisions.
However, in the present case at least, the Defendant cannot invoke this fact, irrespective of the fact that the Defendant would not have given a substantiated and admissible presentation on the high expenditure it postulated, e.g. which measures it, for its part, has taken in the context of the assessment of contributions and which - possibly insurmountable - difficulties it nevertheless faces.
The assumption of a "free shot", as advocated by the defendant, would have the result that, contrary to the above-mentioned principles, the defendant could at any time and arbitrarily, i.e. without sufficient factual justification, delete contributions at least for a limited period of time and possibly rely on the fact that the user concerned does not lodge a complaint or does not lodge it emphatically enough. This is not appropriate in weighing up the conflicting interests of the parties.
In cases such as the present one, the Board is rather of the opinion that the principles developed in the case law on the elimination of the risk of repetition by means of a correction can be applied mutatis mutandis. It is recognised that the risk of recurrence can be eliminated even in circumstances other than those in which a cease-and-desist declaration with penalty clause is issued. However, strict requirements must be imposed on the rebuttal of the presumption (BGH, NJOZ 2018, 194 para. 17; BGH, NJW 2005, 594, 595). In this respect, it should be necessary that the infringer makes it clear beyond all doubt that he will not repeat the contested assertion under any circumstances (Soehring/Hoene, loc.cit., § 30 marginal no. 11). If the party making the statement has revoked his statement or published a correction, it can generally be assumed that the risk of repetition has ceased (OLG Dresden, AfP 2011, 189; Wenzel/Burkhardt, loc.cit., para. 12 marginal no. 17 with further references). A written apology to the injured party should also suffice (Soehring/Hoene, loc.cit., § 30 marginal no. 11 with further references). However, the correction must be made in a sufficiently clear form. It must be possible to discern a final distancing from the offended statement (BVerfG, NJW 2004, 589 - Hair colour of the Federal Chancellor (there only reference to the contrary opinion of the plaintiff); Wenzel/Burkhardt, loc. cit.) Whether the correction was preceded by a request from the person concerned is irrelevant (Wenzel/Burkhardt, loc.cit., para. 12, marginal no. 17 with further references). Even simple deletion - or, in the present case, restoration - is not sufficient (cf. OLG Köln MMR 2012, 197).
It may also be necessary to take into account if the party making the statement defends its legality in the proceedings for the statement without at the same time making it clear that this is done solely for the purposes of legal defence and with the binding assurance that the disputed statement will not be repeated regardless of the outcome of the legal dispute (BGH NJW 1998, 1391 - Klartext; BGH NJW-RR 2001, 1483; Soehring/Hoene, loc. cit.)
The defendant's conduct in this case does not meet these requirements. Admittedly, in response to the plaintiff's complaint, the defendant informed him that the contribution was again available and apologised for having misunderstood the contribution. Thus, the defendant has fulfilled the requirements set out above in the starting point. However, it is not disputed between the parties that the defendant has just not lifted the block imposed on the plaintiff. On the contrary, it continued to exist. If the defendant admits, however, that it wrongly deactivated the plaintiff's contribution, then it must also show its seriousness that it will not repeat this act. In this respect, the defendant has not made any submissions as to whether, following the applicant's successful complaint, it took steps to ensure that his contribution would not be deleted again in the event of a repetition. However, this could have been expected if the defendant had seriously intended, by restoring the contribution, to show that it had committed an error which should not be repeated, as it were, so as to eliminate the risk of repetition. In this context, it could be left open whether the defendant would have been entitled under these principles at all to impose a ban on the user at the same time as deactivating the plaintiff's contribution - which even according to its submission was at least not clearly illegal - or whether it should not have first threatened to do so and possibly imposed a ban after waiting for a period for appeal.
In view of all this, it cannot be assumed that the risk of recurrence has ceased to exist in this case.
The decision on the threat of an administrative penalty is based on § 890 ZPO.
(3) In view of the inadmissibility of the application for a declaratory judgment in respect of paragraph 1, the alternatively submitted application for correction of data had to be examined (application in respect of paragraph 1). However, this is unfounded.
The data subject of a data processing operation - as here undoubtedly is the plaintiff - can demand that the data controller correct incorrect data pursuant to Art. 16 DSGVO. According to Art. 4 No. 1 DSGVO, personal data is individual information about personal or factual circumstances. Incorrect personal data must be corrected. Personal data is incorrect if the information it contains about the person concerned does not correspond to reality (Sydow/Peuker, DSGVO, 2nd ed. 2018, Art. 16 marginal 7 with further details). It is irrelevant to the question of incorrectness whether the person responsible can be accused of fault. The extent of the incorrectness is also irrelevant (BeckOK-DatenschutzR/Worms, 33rd Ed. 01.08.2020, DS-GVO Art. 16 marginal no. 52).
However, only facts can be correct or incorrect, i.e. concrete events or conditions of the past or present that are accessible to evidence. Value judgments are therefore not covered by the scope of application of Art. 16 DS-GVO unless they can be traced back to facts (Sydow/Peuker, loc. cit, Art. 16 marginal 7; Gola/Reif, DS-GVO, 2nd ed. 2018, Art. 16 marginal 10; Kühling/Buchner-Herbst, DS-GVO, 2nd ed. 2018, Art. 16 marginal 9; differentiating Ehmann/Selmayr-Kamann/Braun, DSGVO, 2nd ed. 2018, Art. 16 marginal 20; BeckOK-DatenschutzR/Worms, op. cit.)
In this case, the plaintiff objects to the defendant's alleged remark that there had been a "breach" of the terms of use. As described above, this is a legal assessment which the defendant initially affirmed and then, after review, denied. Accordingly, there is a value judgment (on legal assessments as value judgment see also BGH NJW 2016, 1584 marginal no. 20 - Nerzquäler; as well as here LG Köln, Urt. v. 13.05.2019 - 21 O 283/19, Annex B60; LG Marburg, judgment of 17.05.2019 - 2 O 150/15, enclosure B55).
In addition, the defendant has submitted, without contest, that it has revised its original decision and restored the Post Office. The data are therefore already "corrected", so that a possible claim for correction would already have been fulfilled.
(4) The plaintiff has no claim against the defendant for information as to whether the defendant commissioned a company to carry out the examination (application under 3).
In principle, a claim for information can arise from § 242 BGB if the legal relationship existing between the parties means that the beneficiary is excusably uncertain about the existence or scope of his right and the obligated party can easily provide the information required to eliminate the uncertainty. As a rule, the party against whom the claim for benefits is to be asserted is the party for whom the information is required. However, it is not apparent that the involvement of a third company could give rise to further claims by the plaintiff against the defendant, particularly since the defendant's general terms and conditions, in particular its data directive, provide for very extensive rights to use and pass on data collected from the users of its services and it is not apparent that any damage could arise from disclosure to commissioned companies (cf. OLG Munich, decision of 22.08.2019 - 18 U 1310/19, BeckRS 2019, 26477 marginal no. 22; OLG Munich, 07.01.2020 - 18 U 2346/19; see also LG Hamburg, judgement of 31.05.2019 - 305 O 117/18, BeckRS 2019, 21755 marginal no. 51 et seq.)
5 The plaintiff is also not entitled to information as to whether the defendant has received concrete or abstract instructions, advice, suggestions or any other proposals from the Federal Government or subordinate departments with regard to the deletion of contributions and/or the blocking of users, and if so, which ones (motion on 4.).
There is no basis for a claim. Moreover, the right to information obviously does not serve the purpose of being able to choose the most favourable method of calculating damages, but solely to obtain information about possible other persons responsible for the deletion of contributions in the defendant's social network. Furthermore, claims of the plaintiff against the Federal Republic of Germany, which should be prepared, are not apparent (cf. Munich Higher Regional Court, 7 January 2020 - 18 U 2346/19). Thus there is also no need for legal redress (OLG Munich, decision of 22.08.2019 - 18 U 1310/19, BeckRS 2019, 26477 marginal no. 24; LG Hamburg, judgement of 31.05.2019 - 305 O 117/18, BeckRS 2019, 21755 marginal no. 54; see also OLG Oldenburg, judgement of 27.01.2020 – 13 U 128/19).
6 Nor can the plaintiff demand payment of damages (motion under 5).
a. For the award of monetary compensation, there is no serious impairment of the plaintiff with simultaneous existence of serious fault on the part of the defendant (see also Oldenburg Higher Regional Court, judgment of 27 January 2020 - 13 U 128/19). By deleting his contribution and temporarily blocking his account, the plaintiff was only restricted in the form of his social contact. It was possible for him to contact other people via other media.
b. Insofar as the plaintiff bases his claim for payment on the occurrence of material damage due to the lack of use of the network during the blocking period and insofar as he demands payment of a notional licence fee of EUR 50 per day, he does not get away with this. According to the so-called differential hypothesis, the assumption of material damage presupposes, in principle, that the actual value of the injured party's assets is less than the value that the assets would have had without the event giving rise to the obligation to pay compensation. According to this, there is obviously no damage to the plaintiff, as he would not have received a licence fee for the use of his F-profile and the data stored there even without a block (LG Frankfurt a.M., judgement of 5 March 2020 - 2-03 O 411/18; cf. 27.01.2020 - 13 U 128/19; LG Hamburg, judgement of 31.05.2019 - 305 O 117/18, BeckRS 2019, 21755 marginal no. 57).
c. A fictitious calculation of damage is also out of the question. According to case law, this is only considered permissible in exceptional cases. The Chamber does not consider it appropriate to apply it to the blocking of an F-account (see LG Hamburg, Urt. v. 31.05.2019 - 305 O 117/18, BeckRS 2019, 21755 marginal no. 57; LG Traunstein, judgment of 13.12.2019 – 8 O 2622/18).
d. Nor does the plaintiff's claim arise from Art. 82 (1) DSGVO. It is already not apparent that the defendant would have processed the plaintiff's data - at least with regard to the block in dispute here - in a manner that is contrary to data protection law. According to the defendant's general terms and conditions, the defendant may carry out such deletions and issue blocks. In this case, however, the processing of the data for this purpose is also covered by Art. 6 (1) lit. b) DSGVO. The plaintiff has not sufficiently substantiated the fact that the defendant's data processing would be illegal for other reasons. Moreover, it is also not apparent what damage the plaintiff should have suffered as a result of the allegedly unlawful processing.
7) The plaintiff is entitled to compensation for pre-litigation costs (motion under 6), but not to the amount claimed.
a. The plaintiff may also claim reimbursement of the pre-court warning costs for the out-of-court warning letter under §§ 683, 677, 670 BGB in conjunction with § 257 BGB (application under 6.a), but not to the extent requested.
If the amount of the warning costs is based on the object value of the warning, the costs of an only partially justified warning shall only be reimbursed if the warning was justified. The amount of the compensation claim is to be determined by determining the value of the subject matter to be determined according to the justified part of the warning (BGH (VI. Zivilsenat) NJW 2017, 1550 marginal no. 28 - Michael Schumacher; different in the area of competition law BGH (I. Zivilsenat) GRUR 2010, 744 marginal no. 52 - special newsletter: Quotelung).
According to the case law of the OLG Frankfurt a.M. (decision of 07.09.2018 - 16 W 38/18, NJOZ 2019, 576), the amount in dispute for the claim for omission of the deletion and blocking is generally EUR 3,000, i.e. EUR 4,500 in the main proceedings. As only the "omission", not also the blocking, is the subject of the action here in accordance with the motion for an action under No. 2., the plaintiff can demand from the defendant exemption from pre-court attorney's fees, including lump sum and value added tax, from an object value of 3,000 EUR, i.e. in the amount of 334.75 EUR.
b. In order to obtain a cover note for the action in accordance with the motion for action under no. 6 lit. c., the plaintiff cannot demand compensation for the lawyer's fees incurred in this respect. It was reasonable to expect the plaintiff to first obtain a cover note himself and only after refusal of the insurance to issue a further lawyer's order to take action against the legal expenses insurance company (see OLG Oldenburg, judgement of 27 January 2020 - 13 U 128/19). The plaintiff has already failed to explain the relevant circumstances, but rather only referred to the fact that in other cases the legal protection insurance company only took action upon request by the lawyer.
7 The decision on costs is based on § 92 (1) ZPO. The cost ratio takes into account the mutual winning and losing of the parties.
8 The decision on provisional enforceability is based on sections 708 no. 11, 709 and 711 of the Code of Civil Procedure.
9. the plaintiff was not to be granted a discount on the defendant's representative's statement of 25 August 2020. It is not apparent that the plaintiff was not able to respond to the defendant's written statement, which mainly contained legal arguments and was only a few pages long, until or during the oral proceedings. In particular, the week's time limit laid down in Section 132(1) of the Code of Civil Procedure has been complied with.
