OLG München - 18 U 5493/19 Pre
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| OLG München - 18 U 5493/19 Pre | |
|---|---|
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| Court: | OLG München (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 99(2) GDPR Article 3(1) Rom-I-VO § 307 (1) BGB § 307 (2) BGB § 307 (3) BGB § 3 (2) TMG § 13 (4) TMG |
| Decided: | 08.12.2020 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 18 U 5493/19 Pre |
| European Case Law Identifier: | |
| Appeal from: | LG Ingolstadt (Germany) 31 O 227/18 |
| Appeal to: | |
| Original Language(s): | German |
| Original Source: | BayernRecht (in German) |
| Initial Contributor: | Agnieszka Rapcewicz |
The Higher Regional Court in Munich held that the operator of a social network is entitled, in order to prevent unlawful conduct by its users, to require the use of clear names and to block the user account in the event of violations of this obligation.
English Summary
Facts
The plaintiff's was a user account on the Facebook platform. She created her user account under a pseudonym. Facebook blocked her user account after the plaintiff had not complied with the defendant's request to change her profile name for a clear name. The plaintiff asserted claims against the defendant for the activation of her user account created under the pseudonym, as well as claims for damages and pre-judicial lawyer's fees.
The Regional Court in Ingolstadt granted the action only with regard to the activation of the plaintiff's user account plus pro rata pre-judicial lawyer's fees and otherwise dismissed the action. Both parties filed an appeal against this judgement.
Dispute
Was it legitimate for the operator of the social network platform to ask for the user's clear name?
Holding
On appeal by the defendant, the Higher Regional Court amended the final judgment of the Regional Court of Ingolstadt of 13 September 2019, Case No. 31 O 227/18, to the effect that the action was dismissed in its entirety. The Higher Regional Court dismissed the plaintiff's appeal.
The Higher Regional Court in Munich held that the operator of a social network is entitled, in order to prevent unlawful conduct by its users, to require the use of clear names and to block the user account in the event of violations of this obligation.
Comment
The Higher Regional Court found that the interest pursued by Facebook in requiring users to use their true name is not exhausted by being able to identify users more easily in the event of breaches of its terms of use. In view of the meanwhile widespread socially harmful behaviour on the internet - cyber-bullying, harassment, insults and hate speech - the defendant has a legitimate interest in already having a preventive effect on its users. The Court shared the view of the defendant that the obligation to use the true name is in principle suitable to deter users from unlawful conduct on the internet. When using a pseudonym, the inhibition threshold is significantly lower according to general life experience. Against this, the plaintiff cannot object that the obligation to use the true name did not have an inhibiting effect because the negative behaviour described had massively increased on the internet in recent years despite the existing obligation to use a clear name. The fact that individual users commit violations of the terms of use even using their own name does not justify the conclusion drawn by the plaintiff that the obligation to use a clear name pursued by the defendant would be unsuitable from the outset to achieve the intended goals.
The Court stressed the plaintiff rightly had pointed out that according to the case law of the Federal Constitutional Court and the Federal Court of Justice, anonymous statements or statements made under a pseudonym are also covered by the fundamental right of freedom of expression and that anonymous use is inherent in the internet . In the context of the proportionality test, however, it must be taken into account that there are other social networks besides the defendant that follow a different basic principle and do not require open communication with real names and data, such as Instagram, which is also operated by the "Facebook" group of companies, or YouTube.
The Court pointed out, that GDPR, contrary to the German proposals, deliberately did not grant users of social networks the right to use a pseudonym, and pseudonymisation is only mentioned in Art. 25(1) and Art. 32(1) of the General Data Protection Regulation as a possible measure for data minimisation or for secure data processing, but does not establish a corresponding obligation on the part of the controller. At any rate, taking into account the requirements of the General Data Protection Regulation, the defendant is to be granted greater leeway with regard to the criterion of reasonableness contained in Section 13 (6) sentence 1 TMG. It can therefore plead that it is unreasonable for it to allow the use of the "Facebook" services offered by it under a pseudonym in contradiction to the communication concept pursued with the creation of this platform.
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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.
Titel:
Permissible plain name requirement in social networks
Chains of norms:
Rome I Regulation Art. 3 para. 1
BGB § 307 para. 1, para. 2, para. 3
TMG § 3 para. 2 p. 1, § 13 As. 4 p. 1
GDPR Art. 99 para. 2
Guiding principles:
(1) The operator of a social network is entitled, in order to prevent unlawful conduct by its users, to require the use of clear names and to block the user account in the event of violations of this obligation. (paras. 60 - 63) (editorial guideline)
(2) The legislative history of the General Data Protection Regulation shows that the European legislator deliberately refrained from imposing on the provider of telemedia the obligation to enable the use of telemedia anonymously or under a pseudonym. (para. 53) (editorial lead)
Keywords:
Damages, claim for damages, appeal, content review, legal fees, member state, description of services, freedom of expression, infringement, use, internet, collision, services, interpretation, use of, right to informational self-determination, pre-litigation legal fees.
Previous instance:
LG Ingolstadt, final judgment of 13.09.2019 - 31 O 227/18.
Further information:
Appeal admitted
Tenor
(1) On appeal by the defendant, the final judgment of the Regional Court of Ingolstadt of 13 September 2019, Case No. 31 O 227/18, is amended to the effect that the action is dismissed in its entirety.
(2) The plaintiff's appeal is dismissed.
(3) The plaintiff shall bear the costs of the proceedings.
(4) The judgment is provisionally enforceable against security in the amount of 110% of the amount to be enforced.
(5) The appeal is admitted insofar as the senate dismissed the action with regard to claim 1) (activation of the plaintiff's user account).
Facts
I.
1
The plaintiff asserts claims against the defendant for the activation of her user account created under the pseudonym "..." on the platform "Facebook" operated by the defendant as well as claims for damages and pre-judicial lawyer's fees. The plaintiff's user account was blocked by the defendant on 19 January 2018 after the plaintiff had not complied with the defendant's request to change her profile name.
2
With regard to the presentation of the factual and contentious situation and the motions at first instance, reference is made to the facts of the contested final judgment of the Regional Court of Ingolstadt of 13 September 2019 (file, p. 117/119).
3
The Regional Court granted the action only with regard to the activation of the plaintiff's user account plus pro rata pre-judicial lawyer's fees and otherwise dismissed the action. In its reasoning, the Regional Court essentially stated the following:
4
The plaintiff was entitled to have her user account activated and to be granted unrestricted access to all account functions. Clause 4 of the defendant's terms and conditions, according to which Facebook users provide their true names and data, was invalid (§ 307 para. 1, para. 2 no. 1 BGB), as this provision violated § 13 para. 6 German Telemedia Act (TMG). The provision of an anonymisation or pseudonymisation option for its users was not unreasonable for the defendant. This resulted from a weighing of the conflicting interests of the parties. It was true that the use of pseudonyms could possibly promote "cyber-bullying" and "hate speech" and contribute to a "radicalisation effect". It could also be assumed that the "true name policy" pursued by the defendant could counteract such dangers. However, this was offset by the interest of the users, and in this case the plaintiff, to express their opinions anonymously to the outside world and not to be easily identifiable personally by other users. The fact that the latter interests outweighed those of the defendant was based in particular on the fact that, in view of the undisputed and generally known obligation of every user to register with the defendant under his or her true name, it was readily possible for the defendant to establish the identity of the respective user. However, the defendant thus had a sufficient possibility to influence its users in the sense of the policy it pursued. Due to the invalidity of clause 4 of the defendant's terms and conditions, the defendant was obliged under the contractual relationship existing between the parties to enable the plaintiff to use Facebook under the name "..." chosen by the plaintiff.
The plaintiff has no claim against the defendant for payment of damages in the amount of € ... per day since 19 January 2018. A pecuniary loss suffered by the plaintiff as a result of the blocking of her user account was neither submitted nor proven. It is true that, in exceptional cases, non-pecuniary damage may give rise to a claim for damages. However, this presupposes a considerable encroachment on the rights of the injured party and requires a weighing of interests. In this case, there was no serious interference with the plaintiff's rights. The plaintiff could be expected to refrain from using Facebook until the (possibly provisional) enforcement of a judgement. Communication with third parties by other means was not excluded.
6
In addition, reference is made to the reasons for the decision of the first instance judgement (file, p. 120/123).
7
Both parties filed an appeal against this judgement in due form and time.
8
With its appeal, the plaintiff finally pursues the claim for damages rejected by the Regional Court. The plaintiff essentially states the grounds for its appeal:
9
The Regional Court failed to take into account the immense importance of the defendant's platform and its market position. For a private person, a temporary exclusion from possible communication via this social network was equivalent to the loss of internet access or telephone connection. Furthermore, the Regional Court had failed to recognise the main contractual obligations arising from the user relationship. The contract between the defendant and the individual user was in the nature of a payment.
10
The plaintiff was entitled to monetary compensation for violation of her general right of personality. In view of the 30-day (correctly: month-long) suspension in read-only mode, a serious encroachment was to be assumed. The blocking of user accounts was a disproportionate and significant interference with the users' right of personality. In the course of her hearing, the plaintiff had stated that she had been online every day before the blocking and had friends and acquaintances worldwide with whom she communicated daily via Facebook. Due to the unexpected blocking without notice, it was no longer possible for the plaintiff to set up alternative access to her highly personal data and content or another communication channel, in particular to her family. Moreover, there was no possibility to compensate for the violation of the right of personality in any other way.
11
The defendant also owed damages as a fictitious licence fee, as it continued to use the licence granted by the user during the blocking period despite the lack of consideration. In particular, it used the content provided by the user for advertising purposes. This constituted an unauthorised commercial exploitation of the user's personal content, which justified the payment of damages.
12
In addition, the plaintiff was entitled to damages under Article 82(2), first sentence, of the General Data Protection Regulation (GDPR). In this case, processing had taken place in the form of the blocking of the user account, i.e. a restriction of processing. The user's consent to data processing had been given on the basis of the terms of use and thus on the condition that the defendant fulfilled its contractual obligations.
13
After the plaintiff initially sought damages in the amount of ... € per day from 19.01.2018 until the restoration of the account as well as further pre-litigation legal fees with its appeal, as in the first instance, it partially withdrew the appeal in its written statement of 24.07.2020 (sheet ... in the appendix).
The plaintiff lastly requests,
1.
The judgment of the Regional Court of Ingolstadt of 13.09.2019, Ref. 31 O 227/18, be partially amended.
2.
The defendant is ordered to pay the plaintiff damages in the amount of ... € plus interest thereon in the amount of five percentage points above the base rate since 13 September 2019.
15
The defendant requests,
1.
The judgment of the Regional Court of Ingolstadt of 13.09.2019 (Case No. 31 O 227/18) is set aside in paragraphs 1 and 2 of the operative part and the action is dismissed to that extent.
2.
The plaintiff's appeal of 02.10.2019 is dismissed and the judgment of the Regional Court of Ingolstadt is upheld to that extent.
16
The plaintiff applies for,
The defendant's appeal is dismissed.
In the alternative: The operative part of the judgment of the Regional Court of Ingolstadt of 13.09.2019, Ref. 31 O 227/18, is reworded as follows:
The defendant is ordered to unlock the plaintiff's user account on the platform www.facebook.com created via the email address ... for the plaintiff and to grant her unrestricted access to the functions of the account, namely:
- use of the messaging system ("messenger")
- posting contributions (texts, videos and images) on one's own page
- Joining groups, if permitted by the group
- Tagging other users or pages or individual posts, if these other users allow this
- Commenting on other users' posts, provided that the other users allow this.
17
With its appeal, the defendant continues to pursue its first-instance objective of dismissing the action (in its entirety). In support of its appeal, it essentially states:
18
The plaintiff had expressly agreed to Facebook's so-called plain name policy. The plain name policy reflects the defendant's intention to promote the privacy of users and to create security. It has been a substantial feature of the Facebook service since its inception, providing protection against cyberbullying, harassment, hate speech and other harmful conduct. Users could thus be held more accountable for what they do and say online. The inhibition threshold with regard to inappropriate, offensive and punishable statements towards third parties is higher when using the real name than when using a pseudonym.
19
§ Section 13(6) TMG is not compatible with the principles of European data protection law - the former Data Protection Directive 95/46/EC and now the current General Data Protection Regulation. The objective of the GDPR, in particular recitals 9 and 10, clearly prohibit national laws which conflict with the objective of creating a uniform level of data protection and removing obstacles to the free movement of personal data within the Union. § Section 13(6) TMG, which has no basis in the GDPR or any other European legislation, precisely impedes the free flow of data and increases the level of data protection beyond what is permissible under the GDPR. Literature and data protection authorities therefore agree that Section 13 (6) TMG expired with the introduction of the GDPR. Even if one does not assume this, Section 13 (6) of the German Telemedia Act may not be applied in the specific case with regard to the country of origin principle pursuant to Section 3 of the German Telemedia Act.
20
Moreover, the plain name policy was part of the service description and thus excluded from the content review for general terms and conditions. Irrespective of this, it was sufficiently transparent within the meaning of § 307 BGB. Even if Section 13(6) of the German Telemedia Act (TMG) were still applicable, it would not be infringed by the Directive on Clear Names. In view of the protection intended by the directive, the defendant could not reasonably be expected to allow the anonymous use of the Facebook service.
In response to the plaintiff's appeal, the defendant essentially defends the first instance judgment with regard to the dismissed claim for damages and adds that the claim for damages is already insufficiently defined in terms of content, as the plaintiff names five different bases for claims with different facts of life simultaneously and with equal priority. Moreover, the plaintiff had not suffered any pecuniary loss. There was also no serious violation of the right of personality. In view of the plaintiff's consent, a claim for compensation for a fictitious licence fee was ruled out. Furthermore, the plaintiff's claim for damages did not fall within the scope of application of Art. 82 GDPR. Contrary to the plaintiff's view, Facebook does not have a monopoly or dominant position with regard to the dissemination of opinions. It was free to express its opinion elsewhere.
22
In response to the defendant's appeal, the plaintiff denies, in particular, that the plain-name requirement is an important means of providing protection against cyberbullying, harassment and hate speech. The "inhibition effect" with regard to infringing conduct already occurs by the fact that every user is aware that he registers on the defendant's platform with an email address or telephone number that can be assigned to him and thus all infringements can be traced back to him. In its recitals, the GDPR also addressed the protection of fundamental rights and freedoms. Anonymity on the internet affected at least the fundamental right to freedom of expression and the right to informational self-determination as a particular manifestation of the general right of personality.
23
In response to the reporter's note of 17 July 2020 (file, p. ...), the contents of which are referred to, the defendant essentially supplemented its submissions on Section 13 (6) TMG as follows:
24
§ Section 13 (6) of the German Telemedia Act (TMG) is to be qualified as a provision exclusively under data protection law and falls within the scope of application of the GDPR. The GDPR harmonises data protection law in the EU Member States completely and comprehensively and leaves no room for deviating national law outside the opening clauses contained therein. In particular, the EU legislator had not included an obligation comparable to Section 13 (6) of the Telemedia Act (or even a clear preference for a pseudonymised use of services) in the GDPR, although there had been corresponding emphatic suggestions from the German side in the legislative process. The consequence of this was that Section 13 (6) of the German Telemedia Act was no longer applicable, even if the German legislator had not complied with the requirement to repeal the provision after the entry into force of the General Data Protection Regulation. Moreover, there was also no substantive violation of Section 13(6) TMG, since the use of true identities was a central component of the Facebook service and one of the main reasons for its worldwide success. The defendant had made this decision quite consciously, unlike, for example, the Instagram service of the Facebook group of companies, which allows profiles to be created with aliases, and most other telemedia, such as rating platforms, streaming services, political blogs, search engines, webmail services, podcasts, etc. The defendant had not made this decision consciously.
25
The plaintiff countered this with reference to the fact that Section 13(6) TMG was by no means merely a data protection regulation, but a provision to safeguard freedom of expression. Even if one were to assume that Section 13 (6) of the German Telemedia Act was not applicable, there would be no effective consent, at least with regard to the requirements of the GDPR.
26
With regard to the further submissions of the parties in the appeal instance, reference is made to the submissions of the plaintiff dated 6 December 2019 (file, p. ...), 30 January 2020 (file, p. ...), 24 July 2020 (file, p. ...) and 28 September 2020 (file, p. ...). A.), the defendant's pleadings of 20.12.2019 (Bl. ... d.A.) and 17.08.2020 (Bl. ... d.A.) as well as the minutes of the oral proceedings of 01.09.2020 (Bl. ... d.A.), in each case with the associated annexes.
Reasons for decision
II.
27
The defendant's appeal is admissible and well-founded in its entirety.
28
The international jurisdiction of the Regional Court of Ingolstadt, which must also be examined ex officio in the appeal proceedings (see Federal Court of Justice, Judgment of 28 November 2002 - III ZR 102/02, NJW 2003, 426 with further references), is to be affirmed.
29
Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (EuGVVO) is decisive because the defendant has its seat in Ireland and thus in a Member State of the European Union. In the context of the examination of jurisdiction, it is irrelevant whether the claims at issue are contractual claims or claims in tort, because in both cases the Regional Court of Ingolstadt would have local and thus also international jurisdiction.
30
A contractual obligation of the defendant within the meaning of Art. 7 No. 1 lit. a EuGVVO to provide "Facebook services" would have to be fulfilled at the plaintiff's domicile by virtue of the nature of the case in the absence of a deviating agreement of the contracting parties.
31
If the blocking of the plaintiff's user account were to constitute a "harmful event" within the meaning of Article 7(2) of the Regulation, this would also occur primarily at the plaintiff's domicile. This is because there would be a collision of the conflicting interests of the parties, the plaintiff's right to freedom of expression and protection of her general right of personality and the defendant's right to protection of its Community standards (cf. on the importance of this aspect for the international jurisdiction of German courts in the case of an action for infringement of personality rights by a publication available on the internet BGH, judgment of 2.3.2010 - VI ZR 23/09, BGHZ 184, 313, juris para. 20 et seq.).
32
Contrary to the view of the Regional Court, the plaintiff is not entitled to the activation of her user account created under the pseudonym "..." under § 280 (1), § 249 (1) BGB. The obligation of Facebook users to state their true names and data, as set out in clause 4 of the relevant terms of use of the defendant (Annex KTB 1, as of 30 January 2015), stands up to legal scrutiny.
33
1) The only basis for the plaintiff's claim against the defendant for the activation of its user account is the claim for performance under the contract by which the defendant as platform operator has undertaken to enable the plaintiff to use the services offered by it and which the defendant would have breached by unlawfully blocking it.
34
1) The claims asserted by the plaintiff are to be assessed according to German law. This follows from Article 3(1) Rome I Regulation in conjunction with the choice of law in clause 5 of the defendant's special terms of use for users resident in Germany (Annex KTB 2).
35
1) It is undisputed that a contractual relationship exists between the parties. The defendant offers its users functions and services under the name "Facebook Services", which it provides, inter alia, via its website at www.facebook.com (cf. clause 17.1 of Annex KTB 1). In particular, it offers its users the possibility to post contributions within their own profile and to comment on the contributions of other users, as far as these allow a comment, or to rate them with various symbols.
36
The defendant does not claim any remuneration for the services it offers, which is why the contract of use cannot be classified as a contract of service within the meaning of § 611 BGB. Rather, it is likely to be a contract sui generis. The detailed set of rules of the defendant (Annexes KTB 1 to KTB 3) shows in any case that the defendant offers its services with the intention to be legally bound.
37
1) The clause in dispute under clause 4 of the terms of use is also not part of the service description which would be exempt from the content review pursuant to § 307 para. 3 sentence 1 BGB. BGB.
Pursuant to section 307 (3) sentence 1 BGB, paragraphs 1 and 2 of the provision as well as sections 308 and 309 BGB only apply to provisions in general terms and conditions that deviate from or supplement statutory provisions. Clauses which directly determine the type, scope and quality of the main contractual performance and the remuneration to be paid for it (service descriptions and price agreements), on the other hand, are excluded from the review of content. According to the principle of private autonomy applicable in civil law, the contracting parties are generally free to determine performance and consideration; in the absence of statutory provisions, a standard of review is also regularly lacking in this respect. However, the exemption from content review only applies to agreements on the direct subject matter of performance, whereas provisions that restrict, change, shape or modify the user's obligation to perform must be reviewed in terms of content. This leaves only the narrow area of provisions for the description of performance exempt from review, without the existence of which an effective contract can no longer be assumed due to the lack of certainty of the essential content of the contract (BGH, judgment of 5 October 2017 - III ZR 56/17, NJW 2018, 535, juris marginal no. 15 with further references; Palandt-Grüneberg, BGB, 79th ed. 2020, section 307 marginal no. 44).
39
Based on this standard, only the respective description of the "Facebook services" offered by the defendant in accordance with the definitions under clause 17 of the terms of use (annex KTB 1) constitutes a description of services that is exempt from content control. In contrast, the obligation to use the name also used in everyday life, which is regulated in clause 3 of the terms of use, defines the content of the defendant's main service promise to its users to be able to use the services offered and restricts it with regard to the use of pseudonyms. This clause is not subject to the exceptional circumstances of section 307 (3) sentence 1 BGB.
40
1) Contrary to the view of the Regional Court, the clause stands up to a review of its content. The obligation of the user to state his real name, as provided for in clause 4, does not disadvantage him in an unreasonable manner contrary to the requirements of good faith (section 307 (1) and (2) BGB).
41
1) A violation of the requirement of transparency (§ 307 para. 1 sentence 2 BGB) is not apparent. The obligation under clause 3 of the terms of use to use the same name on "Facebook" as the user uses in everyday life is formulated clearly and understandably.
42
1) The clause is also not incompatible within the meaning of Section 307 (2) no. 1 BGB with essential fundamental ideas of the statutory provision of Section 13 (6) sentence 1 TMG.
43
(1) The dispensability of an examination under the standard of Section 13 subsec. 6 sentence 1 of the German Telemedia Act (TMG) does not already result from the country of origin principle recognised in Section 3 subsec. 2 sentence 1 of the German Telemedia Act (TMG) in conjunction with the fact that Irish law does not recognise an obligation of the service provider corresponding to Section 13 subsec. 6 of the German Telemedia Act (TMG) to enable the use of telemedia under a pseudonym. This is because the defendant has expressly agreed in section 5 of the defendant's special terms of use for users resident in Germany (Annex KTB 2) that German law applies (section 3 subsec. 3 no. 1 TMG). Section 13 (6) sentence 1 TMG therefore also applies to the contractual relationship of the parties in principle, insofar as this provision is not superseded by the primacy of application of higher-ranking law, in particular the General Data Protection Regulation applicable in every Member State since 25 May 2018.
44
Contrary to the view of the defendant, no differentiation can be made between "contractual" and "data protection" legal provisions in the context of the choice of law made. Such a distinction cannot be inferred from the wording of clause 5 of the special terms of use for users resident in Germany pursuant to Annex KTB 2. This applies all the more as clause 5 is intended to completely replace clause 15.1 contained in the general terms of use of the defendant pursuant to Annex KTB 1, so that the content of this clause must also be included in the interpretation. This expresses in particular that the laws of the agreed legal system are to apply comprehensively to all claims that may arise between the user and the defendant.
45
Irrespective of this, Section 13 subsec. 6 sentence 1 TMG obliges the service provider to enable the use of telemedia anonymously or under a pseudonym, insofar as this is technically possible and reasonable for him. This obligation corresponds to a corresponding claim of the user against the service provider, which is why the provision, according to the terminology of the defendant, at least also has a "contractual" character.
(2) Contrary to the view of the defendant, the provision of Section 13 subsec. 6 sentence 1 TMG is also not displaced by the primacy of application of the General Data Protection Regulation. However, this is only due to the fact that a contradiction between the priority provisions of the General Data Protection Regulation and Section 13 (6) sentence 1 TMG can be avoided at least by the required interpretation of this provision in conformity with EU law. With regard to the mandatory requirements of European data protection law, the Regional Court wrongly found that it was reasonable for the defendant to provide its users with an anonymisation or pseudonymisation option.
47
(i) Since 25 May 2018, the General Data Protection Regulation has been binding in all its parts and directly applicable in every Member State of the European Union (Art. 99(2) GDPR). National data protection laws can only contain national implementing, enforcement and special provisions and apply only subsidiarily (Section 1 (3) BDSG). However, according to the case law of the highest courts, it does not follow from this that the national data protection provisions would no longer be applicable from the outset (cf. on this and in the following: BGH, judgment of 24.09.2019 - VI ZB 39/18, BGHZ 223, 168, juris marginal no. 31 f. with further references). Rather, a primacy of application of the General Data Protection Regulation can only be considered insofar as a contradiction arises between the directly applicable law of the European Union and the national German law (BGH, judgment of 5 July 2007 - IX ZR 256/06, BGHZ 173, 129, marginal no. 22 with further references). The supranationally founded law of the European Union does not have a law-destroying (derogating) effect vis-à-vis the law of the Member States, but only restricts its application to the extent required by the Treaties and permitted by the orders to apply the law issued by the law of consent (see BVerfG, Order of 19 July 2011 - 1 BvR 1916/09, BVerfGE 129, 78, marginal no. 81). In this context, it is for the domestic courts to interpret the provisions of national law as far as possible in such a way that they can be applied in a manner that contributes to the implementation of Union law (BGH, Judgment of 24.09.2019 - VI ZB 39/18, BGHZ 223, 168, juris para. 32; ECJ, Judgment of 11.11.2015 - C-505/14, ZfIR 2016, 164, para. 31 et seq.).
48
(ii) Section 13 (6) TMG qualifies as a data protection regulation. The Senate does not uphold the concerns expressed in the reporter's note of 17.07.2020 (loc. cit., p. 3) - as already communicated at the appeal hearing - in view of the defendant's correct explanations of the legislative history of the provision.
49
A provision with corresponding regulatory content was first introduced in 1997 with § 4.1 of the former Teleservices Data Protection Act (TDDSG). According to the explanatory memorandum, with this provision the legislature pursued the goal of minimising or avoiding data (BT-Drucks. 13/7385, p. 7, 23). When the Telemedia Act was passed in 2006, the data protection provisions of the Teleservices Data Protection Act were incorporated unchanged into the new Act (BT-Drucks. 16/3078, pp. 9, 12, 15). The data protection character of Section 13 subsec. 6 sentence 1 TMG also results from the systematic position of the provision in Section 4 - Data Protection of the Act.
50
The Senate also does not adhere to the preliminary view expressed in the notice of 17 July 2020 that the question of whether the user of a social media platform can use the services offered to him anonymously or under a pseudonym is located upstream of the data processing. For with the anonymous or pseudonymous use of telemedia, the user in any case also pursues the goal of avoiding or minimising the disclosure of his or her personal data. Thus, the regulatory content of Section 13 (6) sentence 1 TMG falls within the scope of the General Data Protection Regulation.
51
In its judgment of 23 June 2009 (Ref.: VI ZR 196/08, BGHZ 181, 328, "spickmich"), the Federal Supreme Court confirmed its view that anonymous use is inherent in the internet. A restriction of freedom of expression to statements that could be attributed to a specific individual was not compatible with Article 5 (1) sentence 1 of the Basic Law (BGH loc. cit., marginal no. 38). However, it cannot be deduced from this that Section 13 subsec. 6 sentence 1 TMG is primarily intended to protect freedom of expression. Rather, the Federal Court of Justice states that the provisions of Sections 12 et seq. TMG serve to protect user data vis-à-vis the service provider (BGH loc. cit.).
52
(iii) The obligation of the service provider under Section 13 (6) sentence 1 TMG to enable anonymous or pseudonymous use of telemedia is in conflict with the provisions of the General Data Protection Regulation.
The General Data Protection Regulation does not contain a provision corresponding to Section 13 (6) sentence 1 TMG. It is not necessary to discuss in more detail whether this circumstance in itself would be sufficient to establish a contradiction between the national statutory provision and European data protection law. For it can be inferred from the legislative history of the General Data Protection Regulation referred to by the defendant that the European legislator deliberately refrained from imposing on the provider of telemedia the obligation to enable the use of telemedia anonymously or under a pseudonym.
54
As the defendant correctly points out, the German side attempted to include a right to pseudonymous use in the regulation within the framework of the European standard-setting procedure. A working paper of the German delegation of 24.10.2014 on the topic of pseudonymisation in the Working Party on Information Exchange and Data Protection of the Council of the European Union (doc. 14705/14) contained the proposal for an Art. 7a, which explicitly provided for a "right to use aliases in information society services". Furthermore, on 14 October 2015, the Conference of Federal and State Data Protection Commissioners advocated the inclusion of a provision to protect the privacy of telemedia users, which at least for telemedia used for private purposes within the European Union makes a right to pseudonymous use binding (cf. Conference of Federal and State Data Protection Commissioners of 14 August 2015, Datenschutzrechtliche Kernpunkte für die Trilogverhandlungen zur Datenschutz-Grundverordnung, p. 15, point 14).
55
However, the German proposals have not found their way into the General Data Protection Regulation. Rather, pseudonymisation is only mentioned in Art. 25(1) and Art. 32(1) GDPR as a possible suitable (technical and organisational) measure for data minimisation or for secure data processing, whereby the decision is transferred to the data controller and no obligation in this regard is established.
56
In view of the course of the standard-setting procedure, the silence of the General Data Protection Regulation with regard to a user's right to pseudonymous use of telemedia can therefore be regarded as "eloquent". This has the consequence that in this respect, too, a conclusive regulation of the matter by the General Data Protection Regulation must be assumed, which in principle precludes a deviating national regulation.
57
(iv) The contradiction between the provision of Section 13 (6) sentence 1 TMG and the provisions of the General Data Protection Regulation can, however, be resolved by interpreting the former provision in conformity with EU law.
58
§ Section 13 subsec. 6 sentence 1 TMG only obliges the provider of telemedia to enable their use anonymously or under a pseudonym to the extent that this is reasonable for him. The reasonableness is to be determined within the framework of a proportionality test related to the specific case, in which the interest of the provider is to be weighed against the user's right to informational self-determination (Hullen/Roggenkamp in: Plath, DSGVO/BDSG, 3rd ed., 2018, Section 13 TMG marginal no. 41 with further references).
59
Contrary to the opinion of the Regional Court, this weighing is in favour of the defendant:
60
The interest pursued by the defendant in requiring users to use their true name is not exhausted by being able to identify users more easily in the event of breaches of its terms of use. In view of the meanwhile widespread socially harmful behaviour on the internet - cyber-bullying, harassment, insults and hate speech - the defendant has a legitimate interest in already having a preventive effect on its users. The Senate shares the view of the defendant that the obligation to use the true name is in principle suitable to deter users from unlawful conduct on the internet. When using a pseudonym, the inhibition threshold is significantly lower according to general life experience. Against this, the plaintiff cannot object that the obligation to use the true name did not have an inhibiting effect because the negative behaviour described had massively increased on the internet in recent years despite the existing obligation to use a clear name. The fact that individual users commit violations of the terms of use even using their own name does not justify the conclusion drawn by the plaintiff that the obligation to use a clear name pursued by the defendant would be unsuitable from the outset to achieve the intended goals.
The plaintiff rightly points out that according to the case law of the Federal Constitutional Court and the Federal Court of Justice, anonymous statements or statements made under a pseudonym are also covered by the fundamental right of freedom of expression (Article 5 para. 1 sentence 1 GG) and that anonymous use is inherent in the internet (see BGH, judgment of 23 June 2009 - VI ZR 196/08, BGHZ 181, 328, juris para. 38). In the context of the proportionality test, however, it must be taken into account that there are other social networks besides the defendant that follow a different basic principle and do not require open communication with real names and data, such as Instagram, which is also operated by the "Facebook" group of companies, or YouTube.
62
Some of the commentary literature takes the view that in the case of social networks with a primarily private character - "Facebook" is explicitly mentioned in this context - an obligation on the part of the user to use his or her real name cannot be justified without further ado on the grounds of the supposed unreasonableness of anonymous or pseudonymous use (cf. Hullen/Roggenkamp in: Plath, DSGVO/BDSG, 3rd ed. 2018, § 13 TMG marginal no. 42 with reference to Hoeren/Sieber/Holznagel/Schmitz, part 16.2 marginal no. 205; Spindler/Schuster, Elektron. Medien/Spindler/Nink, 3rd ed. 2015, TMG, § 13 marginal no. 22). Especially on the social web, there is sometimes a legitimate need to publish statements at least under a pseudonym. A conflict between the right to pseudonymous use of telemedia granted in principle by Section 13 (6) sentence 1 TMG and the provisions of the General Data Protection Regulation is denied by representatives of the latter view with the argument that pursuant to Art. 5 (1) lit. c of the GDPR, the processing of personal data must be limited to what is necessary for the purpose of the processing, and according to Article 5 (1) (e) of the GDPR, personal data must be stored in a form that allows the identification of the data subjects only for as long as is necessary for the purposes for which they are processed. It is derived from this that even under the GDPR, anonymous or at least pseudonymous use of telemedia must be made possible if such use is reasonable for the service provider (Hullen/Roggenkamp loc. cit., para. 43 with further references).
63
This line of argument cannot be followed. It ignores the course of the standard-setting procedure of the General Data Protection Regulation, from which it can be inferred that the European standard-setter, contrary to the German proposals, deliberately did not grant users of social networks the right to use a pseudonym, and does not deal with the fact that pseudonymisation is only mentioned in Art. 25(1) and Art. 32(1) of the General Data Protection Regulation as a possible measure for data minimisation or for secure data processing, but does not establish a corresponding obligation on the part of the controller. At any rate, taking into account the requirements of the General Data Protection Regulation, the defendant is to be granted greater leeway with regard to the criterion of reasonableness contained in Section 13 (6) sentence 1 TMG. It can therefore plead that it is unreasonable for it to allow the use of the "Facebook" services offered by it under a pseudonym in contradiction to the communication concept pursued with the creation of this platform.
64
(3) Finally, the clause at issue does not restrict any essential rights and obligations arising from the nature of the contract of use existing between the parties in such a way that the achievement of the purpose of the contract would be jeopardised (section 307(2) no. 2 BGB).
65
The nature of a contract is determined by the purpose and the content of the contract. In the case of non-standardised contracts, the model of the contract shaped by the customary understanding of the market is to be taken as a basis. However, the customary form of the contract is only decisive insofar as it is consistent with the fundamental values of the legal system. If relevant norms are missing, the judge must take into account the expectations of fairness typical of honest business transactions and work out a normative model for the type of contract (Palandt-Grüneberg, BGB, 79th ed. 2020, § 307 marginal no. 34 with further references).
66
The contract of use existing between the parties is - as explained above - a non-standardised contract sui generis. The defendant does not claim any remuneration for the services it offers. However, the user grants the defendant a non-exclusive, transferable, sub-licensable and worldwide licence for the use of any IP content he posts on Facebook (cf. no. 1 of the Terms of Use for Users Residing in Germany, Annex KTB 2).
According to the case law of the highest courts, which has already been cited several times, anonymous use is in principle inherent in the internet (BGH, judgment of 23 June 2009 - VI ZR 196/08, BGHZ 181, 328, juris para. 38).
68
Due to the dominant position of the defendant as operator of "Facebook", by far the largest social media platform, the customary design of such platforms is, however, also characterised by the policy of using clear names pursued by the defendant on this platform. The use of the specific "Facebook" services offered by the defendant is also not only reasonably possible by using a pseudonym.
69
When examining the question of whether the customary design is in line with the fundamental values of the legal system, the requirements of the directly applicable General Data Protection Regulation must again be taken into account, which precisely does not know any obligation of the service provider to enable the pseudonymous use of telemedia. With regard to the details, reference is made to the above statements under lit. bb). Therefore, the plaintiff cannot derive a claim to the use of a pseudonym in the context of his own profile from the nature of the user contract concluded with the defendant.
70
1) Insofar as the plaintiff disputes the lack of effective consent pursuant to Art. 7, 4 No. 11 DSGVO with regard to the obligation to use a clear name, it cannot be heard to do so. The Senate is unable to recognise the requirement of a specific consent with regard to the clause at issue. Moreover, it must be taken into account that Article 6 of the GDPR contains further admissibility criteria for data processing in addition to the consent of the data subject, of which, in view of the above considerations, Article 6(1)(f) of the GDPR would have to be considered relevant in any case due to the legitimate interests of the defendant.
71
1) The plaintiff has not comprehensibly explained to what extent the policy of using clear names pursued by the defendant is supposed to be contrary to morality (§ 138 (1) BGB). A violation of morality is also not apparent.
72
1) Contrary to the concerns expressed in the note of 17.07.2020, no legal effects, in particular no extension of legal force pursuant to Section 11 UKlaG, can be derived from the judgment of the Regional Court of Berlin of 16.01.2018, Case No. 16 O 341/15, for the present legal dispute.
73
The Berlin Regional Court had based its decision primarily on the requirement of effective consent pursuant to Sections 4, 4a BDSG (old version), which are no longer in force since the application of the General Data Protection Regulation. The provision of Section 4 BDSG a.F. (permissibility of data collection, processing and use) has been replaced by Art. 6 DSGVO and the provision of Art. 4a BDSG a.F. (consent) by Art. 4 No. 11, Art. 7 DSGVO. As already mentioned, the new regulation in Art. 6 DSGVO now provides for further admissibility criteria for data processing in addition to the consent of the data subject, of which Art. 6 para. 1 lit. f DSGVO comes into consideration in the present case. Insofar as res judicata has effects for the future, a change in law must be taken into account (see Zöller/Vollkommer, ZPO, 33rd ed. 2020, Vor § 322 marginal no. 53), so that a binding effect on the judgment of the Berlin Regional Court can no longer be assumed.
74
1) The defendant's authority to impose blocks on a user who has breached his contractual obligations results from clause 4.3 and clause 14 of the terms of use (Annex KTB 1). Admittedly, the clause in clause 14 is headed "Termination". What is decisive, however, is that in this clause the defendant reserves the power to "discontinue the provision of Facebook [...] in whole or in part" in the event of a breach by the user of the contents of this statement. Irrespective of this, the temporary blocking would also be permissible as a milder means compared to a termination of the contract for cause.
75
Since the plaintiff has no claim to the activation of her user account, the district court's order to pay the defendant's pro rata pre-trial legal fees is also unsustainable.
III.
76
The plaintiff's admissible appeal is unsuccessful on the merits.
77
(1) The plaintiff is not entitled to damages in the total amount of € ... because the defendant did not breach its contractual obligations towards the plaintiff by blocking the plaintiff's user account. Reference is made to the above statements under section II.
78
2 Furthermore, a claim would not exist even if the blocking had been unlawful:
79
2) A claim for damages, whether under § 280 (1) or §§ 823 et seq. in conjunction with § 249 et seq. BGB, fails - irrespective of all other prerequisites - because the plaintiff has not comprehensibly shown that it has suffered material damage in the amount claimed. The burden of presentation and proof for the occurrence of the damage and its amount lies with the injured party in all cases of liability (see Palandt/Grüneberg, BGB, 79th ed. 2020, 280 marginal no. 34; Palandt/Sprau, § 823 marginal no. 80 f.).
80
The plaintiff herself admitted at her hearing in the hearing of 07.11.2018 (p... of the appendix) that she had no direct material damage due to the blocking. The temporary restriction of her private communication options on "Facebook" and the loss of control over her personal data alone - even if such a loss should have occurred - does not in itself have any pecuniary value. The restriction of "contact with the outside world" can at most constitute pecuniary damage within the framework of the right to established and exercised business operations protected by § 823.1 BGB as an "other right" (see Palandt/Sprau loc. cit. § 823 marginal no. 133 et seq.). Pursuant to § 253 (1) BGB, compensation in money can only be claimed for non-material damage in the cases specified by law.
81
2) The factual prerequisites of a claim for damages for pain and suffering under § 253 para. 2 BGB are obviously not present. The plaintiff has not been injured in any of the legal interests mentioned in this provision. The provision is not correspondingly applicable to other legal interests and absolute rights (Palandt/Grüneberg loc. cit. § 253 marginal no. 11).
82
2) The plaintiff is also not entitled to monetary compensation for violation of the general right of personality (Article 2.1, Article 1.1 of the Basic Law).
83
According to the case-law of the highest courts, the culpable violation of the general right of personality in a collision with freedom of opinion or freedom of the press gives rise to a claim for monetary compensation if it is a serious encroachment and the encroachment cannot be satisfactorily compensated for in any other way. Whether the violation of the right of personality is so serious that the payment of monetary compensation is necessary can only be assessed on the basis of the entire circumstances of the individual case. In particular, the significance and scope of the encroachment, the sustainability and continuation of the harm to the interests of the injured party, the cause and motive of the actor and the degree of his fault must be taken into account (see BGH, judgment of 17 December 2013 - VI ZR 211/12, NJW 2014, 2029, juris, marginal no. 38).
84
2) Even taking into account the fact that the contractual obligation existing between the parties is characterised by the indirect third-party effect of the parties' fundamental rights via § 241 (2) BGB, this case law cannot be transferred without further ado to breaches of duty within the scope of an existing contractual relationship. This is because a restriction in breach of duty of communication possibilities which are in any case only available to the plaintiff on the basis of the contract of use concluded with the defendant already does not impair her general right of personality.
85
According to the established case-law of the Federal Constitutional Court, the general right of personality protects the narrower personal sphere of life and the development of its basic conditions (BVerfGE 121, 69, 90). It offers protection against a comprehensive restriction of personal development or private autonomy (BVerfGE 72, 115, 170). In this respect, it concerns the basic conditions of free self-determination and development, whereas for individual impairments of private autonomy, the general freedom of action (Article 2.1 of the Basic Law) is relevant (cf. Jarass in Jarass/Pieroth, GG, 13th ed., Article 2 marginal no. 50 with further references).
The plaintiff can derive the right to express herself on "Facebook" exclusively from the user agreement concluded with the defendant. In this respect, the blocking of the plaintiff's profile only represents an individual impairment of her private autonomy, which affects her general freedom of action. On the other hand, the blocking is not connected with a comprehensive restriction of her personal development in the aforementioned sense; there is no claim to the use of certain means of communication for contact with third parties or for the expression of opinions.
87
2) Irrespective of this, the further prerequisites for the award of monetary compensation, that it is a serious violation of the right of personality and that the impairment cannot be satisfactorily compensated in any other way, would also be lacking. If the defendant culpably violates its contractual obligations towards the user by blocking the user, the user is entitled to claims for injunctive relief, remedying of the consequences and damages by way of in rem restitution, which can be enforced in court - if the procedural requirements are met also by way of interim relief.
88
2) Claims of the plaintiff for a fictitious licence fee are also out of the question.
89
By concluding the user agreement, the plaintiff gave consent to the comprehensive use of her contributions and data without declaring a reservation in the event of temporary blocking of her user profile.
90
The licence to the posted contents granted to the defendant by its users pursuant to No. 2 of the terms of use (Annex KTB 1) admittedly constitutes the "consideration" for the use of the Facebook services. However, it does not follow from this that the contract of use is a mutual contract within the meaning of §§ 320 et seq. BGB. In particular, this is contradicted by the fact that according to clause 2 of the terms of use or according to clause 1 of the terms of use for users residing in Germany (Annex KTB 2), the user "owns" the content posted by him and can terminate the licence at any time by deleting the content or the account. Furthermore, it cannot be inferred from the contractual agreements that the defendant would be prevented from using the licence granted to it during a blocking of the user. The licence can also be understood as consideration for the provision of the Facebook services prior to the blocking, especially since new content cannot be added during the blocking. Moreover, a quantification of performance and consideration does not even seem possible due to the nature of the gratuitous contract of use.
91
2) Finally, a claim for compensation for non-material damage under Article 82(1) of the GDPR is also ruled out.
92
According to this provision, any person who has suffered material or non-material damage due to a breach of this regulation is entitled to compensation from the controller. However, the processing of the plaintiff's data by the defendant did not violate the GDPR because it was based on the consent given in advance to the defendant's terms of use within the meaning of Art. 6(1)(a) GDPR and on Art. 6(1)(f) GDPR.
Moreover, it also applies here that all disadvantages suffered by the injured party in terms of his or her assets or other legally protected assets are compensable as damage (cf. Kühling/Buchner/Bergt, DS-GVO, 2nd ed. 2018, Art. 82 marginal no. 19). Such non-material damage, which in this case could at most be linked to a - possibly also less serious - violation of the right of personality (cf. on this Becker in: Plath, DSGVO/BDSG, 3rd ed. 2018, Art. 82 DSGVO marginal no. 4c; Wybitul, Immaterial Damages for Data Protection Violations, NJW 2019, 3265, 3267), however, as explained, does not exist. The mere blocking of the plaintiff's user profile does not constitute such damage.
IV.
94
The decision on costs is based on § 91 (1) and § 97 (1), § 516 (3) ZPO.
95
The decision on provisional enforceability is based on § 709 sentences 1 and 2 ZPO.
96
The appeal proceedings also concern a non-pecuniary dispute. Only the award of costs is enforceable, the value of which, however, exceeds the amount of €1,500 referred to in § 708 no. 11 ZPO.
97
The Senate allows the appeal with regard to the rejected application for the activation of the plaintiff's user account because of fundamental importance (§ 543.2 sentence 1 no. 1 ZPO).
98
The question that is decisive for the dispute, whether an obligation to use the plain name provided for in the terms of use of a social media platform is effective and Section 13 subsec. 6 sentence 1 TMG does not preclude this obligation - possibly also as a result of displacement or interpretation in the light of the General Data Protection Regulation - has - as far as can be seen - not yet been decided by the highest courts. In the relevant commentary literature, different opinions are held on this. In view of the importance and scope of the "Facebook" platform operated by the defendant, the question appears to be in need of clarification because it may arise in an indefinite number of cases.
99
Apart from that - with regard to the asserted claim for damages - the appeal is not admissible because the requirements of § 543 (2) ZPO are not met.
