LG Itzehoe - 10 O 84/20
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| LG Itzehoe - 10 O 84/20 | |
|---|---|
 | |
| Court: | LG Itzehoe (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 2(1) GDPR Article 2(2)(c) GDPR Article 4 GDPR Article 6 GDPR Article 6(1)(f) GDPR § 1 Abs. 1 S.2 BDSG Art. 12 GG Art.5 GG |
| Decided: | 11.06.2020 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 10 O 84/20 |
| European Case Law Identifier: | |
| Appeal from: | |
| Appeal to: | Not appealed |
| Original Language(s): | German |
| Original Source: | openJur (in German) |
| Initial Contributor: | Marieta Gencheva, LL.M. |
The Regional Court of Itzehoe (LG Itzehoe) held that the data subject has to tolerate images of his property in the geo-services of the controller because the controller has a legitimate interest under Article 6(1)(f) GDPR.
English Summary
Facts
Google (the controller), offers the services Google Maps and Google Earth to its users. Both services enable users to see the satellite images of the data subject's property which was photographed by Google. When searching by entering the address of the property, the red location pin is not directly on the property but on the street. However, when entering the GPS coordinates, the red location pin is directly on the property. The aerial photograph shows the location and size of the residential building, as well as various facets of the property (green areas, roof area, terrace, garden).
The data subject had requested Google to pixelate or make unrecognizable his property in both services. The data subject claimed that the satellite images were his personal data. Furthermore, he argued that the controller could not rely on the fact that they were using data that could be obtained from commercial and public sources, as he had not authorised either Google Maps or third parties to take or publish the photographs of his property.
Holding
The Regional Court of Itzhoe (LG Itzehoe) rejected the data subject's claim. It held that the interest of the controller in continuing to use the image outweighs the interest of the data subject in making the property unrecognisable.
First, the court recognized the need of the general public to look at the world from the above through the controller's services. The individual reasons for which the users do this are irrelevant in the present case, since mere access to any kind of information source is already protected. If many data subjects' properties were made unrecognizable, the information content of the images would decrease significantly.
Second, the court established that the interest of the controller outweighs the interest of the data subject in this case due to the lack of a concrete connection between the image of the residential property including the address entry and the data subject as a person. It is undisputed that the image of the data subject's wife's house does not directly link to the name of the data subject or other residents.
Lastly, the court held that the question of whether the image of the house plot is personal data of the data subject, also with regard to the geo-coordinates associated with the image, ultimately does not require a final decision. That is because in any case, the data subject has to tolerate the pictorial representation of the affected property in the geo-services of Google Maps since Google has a legitimate interest that outweighs the interest of the data subject within the meaning of Article 6(1)(f) GDPR.
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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.
LG Itzehoe, judgment of June 11, 2020 - 10 O 84/20
Source openJur 2022, 11729 Rkr: AmtlSlg:
Civil Law Data Protection Law
tenor
1
The charges get dismissed.
2
The plaintiff bears the costs of the lawsuit.
3
The judgment is provisional against security of 110% of the amount to be enforced
enforceable.
facts
4The parties dispute the authority of the defendant, which is owned by the plaintiff's wife
house plot in their online services G.M. and G.E.
5The plaintiff is the managing director of various companies in the field of vegetable production with around 1,000
employees. The plaintiff's wife is the owner of the disputed property, in XXX. The plaintiff
lives on the property with his family.
6
The defendant offers G. services for users based in XXX and XXX. G.M. is one
Online map service accessible to everyone. This service offers a so-called satellite view at G.E.
on. It is possible to view satellite images via both services. Both services allow playback
of satellite images of the plaintiff's property, which was taken by the defendant from a height of 15,000 HUF
has been recorded. In this respect, reference is made to Annex K2. In both services appears by entering the address
the disputed property in the displayed image detail. As part of the search by entering an address
However, the red marker is not located directly on the plaintiff's property, but on the street at which
However, entering the GPS coordinates (XXX) does.
7The aerial photograph shows the location and size of the residential building, as well as various facets of the
Land (green areas, roof area, terrace, garden).
8About the recognizable details on the shot (overall size, entrances, a white seating group and the pool
of the plaintiff along with deckchairs) the parties argue.
9
The plaintiff requested the defendant to use the general complaints tool to cede his property to G. M. and G. E
pixelate or make unrecognizable. As justification, he refers to the possibility of
Defacement at G.S.V., another service offered by the defendant.
10After the defendant refused this, the plaintiff had the defendant warned in a letter dated May 27, 2019.
In this respect, reference is made to Annex K3. The defendant justified its negative attitude with the fact that in G. M. and
G. E. Only information and images from commercial and public sources would be used
be obtainable. The defendant submitted a number of aerial photographs in which the disputed
Property from other providers and their services can also be viewed by the public. In that regard, on Bl. 52-60 d.
A. Referenced.
11The plaintiff claims to be authorized to conduct proceedings. His wife had authorized him to settle all claims
to assert their property against the defendant in their own name.
12He further claims that the defendant is pursuing purely commercial interests with its services, which are based on
Commercialize and monopolize information about third parties. By making it unrecognizable, that would
The defendant's business model cannot be called into question. This is already shown by this possibility in
Framework of the service G.S.V..
13He claims that all the details of the property shown on the satellite images are not visible from the street
be visible. Only the outer facade can be seen from the street. To this end, he states that
Property protected from view by an approx. 2.20 m high, opaque wooden fence and by planting
third party is protected. In addition, he claims that the recordings of the resident's personal circumstances
or owner are also of interest to criminals. These are suitable to search the property for additions or
to scout for obstacles.
He believes that the reproduction of the aerial photographs of the property violates his right to informational,14 He believes that the reproduction of the aerial photographs of the property violates his right to informational
self-determination. The intervention follows from the fact that the recordings provide any interested party with specific information about
would give his financial circumstances. To this end he elaborates, in a simple and modest
to be active in an agricultural sector. That's why he doesn't want employees, contractors, competitors
or other third parties gain knowledge of his financial circumstances, which he always treats confidentially. the
Recordings are likely to arouse envy or resentment, especially with regard to the company's approximately 1,000 employees
and to generate pressure to explain and justify. The one on the property applies in particular
located pool as a social luxury indicator, which can be seen on the recording.
15Furthermore, he says that the shots of the pool area are one of privacy and intimacy
dedicated area, the pictorial reproduction of which is fundamentally inadmissible.
16He believes that his general right of personality and his fundamental right under Article 13 of the Basic Law have been violated.
He further claims that his wife's property rights would be violated.
17 In addition, the plaintiff says that the claim for injunctive relief is also based on data protection law
points of view, since the recordings are personal data. The defendant could
Nor can they claim that they use data that can be obtained from commercial and public sources
because the plaintiff had not allowed either the defendant or third parties to take pictures of his property
produce or publish.
18
The plaintiff initially applied for the defendant to be sentenced, avoiding one for each case
Violation of a fine to be set up to EUR 250,000.00, alternatively imprisonment, or
Orderly detention, each for up to six months, to refrain from taking aerial photographs of the plaintiff's property in their
services G. M. and G. E., if this happens, as shown below: (Figure, fol. 2 d. A. and
Legal action). In the oral hearing on May 7th, 2020, he presented a new image of the property on which the
property is outlined in red. In this respect, reference is made to Appendix K10.
19The plaintiff now requests
20 to order the defendant to fix it for each case of infringement while avoiding one
Fine of up to EUR 250,000.00, alternatively detention, or detention, each up to six
months, to refrain from taking aerial photos of the plaintiff's property in their services G.M. and G.E.
to be reproduced as shown in the annex to the judgment.
21
The defendant requests
22
reject the complaint.
23 The plaintiff continued to submit his pleadings of May 25, 2020, which were not submitted. Because of the other
Details of the state of affairs and the dispute is referred to the content presented by the parties
exchanged pleadings and the minutes of the oral hearing of May 7th, 2020.
reasons
24I. The lawsuit is admissible.
251. Contrary to the view of the defendants, the complaint is not too vague according to §253 Section 2 No. 2 ZPO. From that
can only be assumed if the claim is not sufficiently specific even after interpretation. The defendant
objects that the plaintiff did not specifically name the property in the application. The naming of the property
but arises from the statement of claim and according to Annex I to the minutes of the oral hearing of
07.05.2020 as well as from the plot designation according to the land register excerpt. In this respect, reference
taken on the plant K8.
262. The Itzehoe Regional Court has subject matter jurisdiction pursuant to Sections 23 No. 1.71 (1) GVG.
3. According to §32 ZPO, the district court of Itzehoe is locally responsible. According to §32 ZPO is for lawsuits from tort,273. According to §32 ZPO, the district court of Itzehoe is locally responsible. According to §32 ZPO is for lawsuits from tort
The court in whose district the act was committed has jurisdiction. To justify jurisdiction
it is sufficient if the plaintiff conclusively asserts facts from which a crime was committed in the judicial district
tort (cf. BGHZ 124, 237 [241] = NJW 1994, 1413; BGHZ 132, 105 [110 f.] = NJW 1996, 1411).
The place of commission of the criminal act is both the place of action and the place of success, so that a
Jurisdiction is either where the infringing act was committed or where in a
protected legal interest was intervened (cf. BGHZ 132, 105 [110 f.] = NJW 1996, 1411; GRUR 2016, 1048 para. 18 -
An evening with Marlene Dietrich). Claims for damages are also recorded
Claims for injunctive relief (cf. Senate, GRUR 2011, 558 para. 6 f. =AfP 2011, 265 – www.womanineurope.com; BGH,
GRUR 2016, 1048 para. 17 - An evening with Marlene Dietrich; GRUR 1994, 530 = MDR 1995, 282 - Beta; GRUR 2018,
642, beck-online).
28The place of success is in Germany. The representations objected to as infringing objectively indicate a
clear domestic connection in the sense that a collision of the conflicting interests - interest of the
Complainant in respecting his personal rights on the one hand, the defendant's interest in shaping theirs
Internet presence on the other hand - can actually have occurred in Germany depending on the circumstances of the specific case
or can occur (cf. BGH, judgment of 02.03.2010 - VI ZR 23/09, BGHZ 184, 313 = MDR 2010, 744 = AfP 2010, 167 =
CR 2010, 383 = IPRax 2011, 167 para. 15ff. "New York Times"). This is to be assumed if an acknowledgment
of the disputed representation is considerably closer to the circumstances of the specific case in Germany than it is
would be the case due to the mere availability of the offer and the impairment alleged by the plaintiff
of his personal rights through knowledge (also) in Germany (cf. BGH, loc.cit., CR 2018, 657,
658). If you apply these standards developed by case law, which the Chamber expressly adheres to
connects, also the basis of the present case, then it can be assumed that knowledge of the
objectionable illustration in Germany is obvious. The services offered by the defendants GM and E
is a recognized map and navigation system that is used worldwide. A navigation will
typically used when you want to find your way around in a certain environment, so that the
The illustration at issue is noted above all if navigation is carried out domestically, i.e. in
Germany, takes place. In addition, there is a domestic connection in the provision of the image on the Internet
This is because the defendant is clearly (also) targeting German users with this service and is expanding its offer
this aligns. At least that's how the page appears in German with the domain ending ".de" when accessed in Germany
and they can be used to call up local services such as hotels, gas stations or supermarkets on site.
294. International jurisdiction follows from Art. 7 No. 2 of the Brussels Ia Regulation.
30
5. The plaintiff is authorized to conduct litigation, even if he has no rights of his own, but the rights of his wife
claims. There is the permissible willed process standing. According to this by the case law in
In the absence of a statutory regulation, the plaintiff can, exceptionally, use a third-party right
claim in his own name, if the substantive right holder has authorized him to do so, the plaintiff
own legitimate interest in enforcing the claim and the defendant is not disadvantaged as a result
suffers. These conditions are given. The plaintiff is, to the conviction of the Chamber, through his wife,
as evidenced by Annex 2 submitted at the time of the oral hearing, authorized (page 154 of the file). One
The questioning of the wife as a witness was not required, because the court could use free evidence to testify
form conviction. According to the established case law of the
BGH is a procedural requirement that has to be checked ex officio at every stage of the proceedings (BGHZ 31, 279
[280 f.] = NJW 1960, 523 = LM § 561 No. 26; BGHZ 125, 196 [200] = NJW 1994, 2549 = LM H. 8/1994 § 237 KO Nos.
7/8; BGH, LM H. 1/2000 § 13 UWG No. 99 = WRP 1999, 1159, under II 1; NJW 2000, 738, beck-online). During the exam
the court is not bound by the general rules of evidence; it is independent of motions of evidence and
convinces himself by means of free evidence (Althammer in: Zöller, code of civil procedure, 33rd edition 2020, § 56 ZPO, para. 8
m.w.N.).
31Since the authenticity of the document, by means of which the authorization is to be proven, not by the defendant
was disputed, but only the authorization itself, Annex 2, which was submitted for the record, could be authorized by way of
Free evidence will be used. Incidentally, there are also the other requirements of the desired
process standing before. The plaintiff's interest, which is worthy of protection, follows from the fact that he took the pictured object with him
shared with his family. The defendant is also not disadvantaged by the appearance of the plaintiff in
willed process steadfastness.
II. However, the action is unfounded.,32II. However, the lawsuit is unfounded.
33The plaintiff cannot assert a claim for injunctive relief against the defendant from any legal point of view
make.
34
1. The plaintiff has no claim for injunctive relief against the defendant under Section 1004 (1) BGB in conjunction with Section 185 BGB.
35
a) With regard to the assertion of property impairment, the applicability of German law follows
Art. 4 para. 1 Rome II VO.
36b) A claim-triggering impairment within the meaning of Section 1004 Paragraph 1 of the German Civil Code exists if the content
encroachment on the legal or factual power of the owner that is contrary to ownership
is given, whereby an effect on the material substance is not necessary. The starting point is § 903 S. 1 BGB,
according to which the right of ownership as a comprehensive right to rule over a thing allows the owner, any third party
excluded from using the property. However, a right to the image of one's own thing does not fall in principle
in the allocation of property. However, according to the (controversial) case law of the Supreme Court, this
Unauthorized photographing of a building or a garden and the exploitation of such photographs according to §
1004 Para. 1 BGB represents a preventable impairment of property if not from generally accessible places, but
was photographed from the property on which the building or garden is located (Federal Court of Justice, judgment of 17
December 2010 - V ZR 45/10, NJW 2011, 749, paragraph 8 ff; Judgment of March 1, 2013 -V ZR 14/12, NJW 2013, 1809 para. 12
et seq.). Since the property owner decides who is allowed to enter his property and to which ones
If this is to be made possible, the assignment content of property also includes the right to exercise it
decide who may derive the economic benefits that enter the property opens up (Federal Court of Justice, judgment of
March 1, 2013 - V ZR 14/12, NJW 2013, 1809 para. 14; BGH, judgment of September 20, 1974 -I ZR 99/73, NJW 1975,
778; BGH, judgment of December 19, 2014 -V ZR 324/13 -, para. 8, juris).
37According to this case law, the location of the photo is decisive. So one could
In any case, impairment can be considered if the recordings are from a non-generally accessible
were made from (cf. BGH loc. cit.). This jurisprudence means that the place from which the
Recordings are made, is decisive for the admissibility of the exploitation. building owners,
which cannot be viewed from outside the property are therefore exclusive
exploitation rights to the images. On the other hand, buildings that are clearly visible from the street can also
photographed without the consent of the owner and the images used accordingly (Schönewald WRP 2014,
142, 144 f, Staudinger/Thole (2019) BGB § 1004, para. 227).
38
However, it is inherent in aerial photographs that they are taken from any location or by means of satellites
public (world) space and thus - even if not possible for everyone - from a generally accessible place
be made from.
39Uninvited intrusion into the airspace of a property, the column of air directly above it
fundamentally constitutes an impairment of property, as follows from Section 905 sentence 1 and sentence 2 of the German Civil Code. The real estate
also records the airspace above the respective property; there is no height restriction.
However, according to § 1 Para. 1 LuftVG, the proper use of the airspace by aircraft is generally free,
thereby restricting the right of ownership of the landowner.
40The overflight at 15,000 feet therefore does not constitute a preventable encroachment on property, just as little as that
Taking photographs from this height, especially since it is unclear here whether the air column is above the property at all
of the plaintiff's wife has been flown through. Because the owner did not fly over and take photos from there
can prohibit, the attribution content of the property is not affected.
41But even if one does not rely solely on the location of the photograph for the question of property damage
wanted to turn off and instead on the recognizable will of the owner to protect his property from the eyes of third parties
hide, there is no right to injunctive relief. Although it may be that the plaintiff with his family his property
surrounded by a high fence and green plants and thus protected from the eyes of neighbors and other third parties
has protected, which follows at least in part from the aerial photographs presented in the process, this can be done here
but remain undecided. Because even then there would be no legitimate interest in the defense and the plaintiff would have
to tolerate the impairment, §§ 1004 paragraph 2 in conjunction with 905 sentence 2 BGB.
To the extent that the plaintiff alleges spying on his property, considerations of further service,42 To the extent the plaintiff alleges spying on his property, considerations of further service
of the defendant G.S.V. cannot be transferred, since these are two different services. G.S.V. offers
the user image material of public roads, which does not differ from those images that everyone at
Driving along a road can be seen and recorded by yourself. House facades, cars, license plates
and even people depicted. The resolution of the images is very high, which is reflected in the level of detail. G.
M. and E., on the other hand, depict the earth's surface from above. The playback quality is significantly lower than that
Dienst G. S. V., so that these illustrations are not suitable for spying due to a lack of detail.
43 The defendant's interest in further using the image outweighs the plaintiff's interests in the present case
Defacement of the property.
44
According to § 905 S. 2 BGB, the owner loses his right to prohibit with regard to such influences, on whose
Ban he has no interest worthy of protection (MüKoBGB/Brückner, 8th edition 2020, BGB § 905 marginal number 5). At what depth
(or amount) the interest of the property owner in the exclusion of an impact no longer applies
set in general. The concrete circumstances are decisive, whereby every interest worthy of protection
prohibition right (MüKoBGB/Brückner, 8th edition 2020, BGB § 905 marginal number 5). The flyover and also the
The owner cannot prohibit taking photographs from an altitude of 15,000 feet. The publication
of the aerial photographs taken in the process cannot be prohibited.
45Through the depiction from a bird's-eye view, the viewer gets an overall impression of a specific one
depicted thing or location. Above all, he can look at the size and scope of a property and house
open up. Under certain circumstances, other details can be seen in the illustrations, such as a garden or
Pool area or other individual designs. However, the image quality is very low and also the limited
Zoom option does not allow for a more detailed view.
46The fact that the property in the form of the figure is visible to everyone at G. M. and E. and the
The range of addressees is not manageable, does not allow a different view in the present case. A possible
Conclusions about any existing assets of the resident through the design of the property are available
to accept The information provided in the figure is too unspecific in this case. From the figure
it is not clear who the occupants are, whether the occupants of the house are owners or renters, or how many
people live in the house. Contrasted with the facts in which plots are straight through the press
were spied out in order to make the pictures, together with the names of those affected, the subject of a report
to do (cf. BGH, judgment of December 9th, 2003 - VI ZR 373/02, inNJW 2004, 762, beck-online) is neither
the disputed property was specifically spied out and highlighted. Concrete details about that
Criminals could take advantage, such as doors, windows or other entrances, are currently not apparent.
47
On the part of the defendant, the main argument is the interest in information arising from Article 5(1) of the Basic Law. Your are free to access
to enable such information through their services and thus also their freedom of activity in accordance with Art. 12 para.
1 GG to pursue.
48
The G.M. and E. services take into account the need of the general public to look at the world from above
carried. For which individual reasons the individual users do this is irrelevant in the present case, since the
mere access to any type of information source is protected. An affirmative action to deface the
disputed figure would ultimately lead to the recording and making available of
Satellite images would be led ad absurdum, because with an imaginary accumulation of defacements
not much would be recognizable to them. Belongs to the surface of the earth, in addition to the illustration of the various
Types of terrain, including the depiction of the existing buildings. The information content of the recordings and thus
along with this, the interest of users would decrease significantly if they were made unrecognizable.
49In addition, it should also be in the general interest to be able to look at the image of the earth from above
to be ordered higher than the interest in the illustrations by the G.S.V. service. This is related to
that it is fundamentally possible for every individual to form their own picture from the S. V. (street view).
502. The plaintiff also has no claim for injunctive relief against the defendant from §1004 para. 1 sentence 1 BGB analogous i. V. m. §
823 para. 1 BGB i. V. m. the general right of personality from Art. 2 Para. 1, Art. Para. 1 GG.
51a) With regard to the assertion of personal rights violations, the applicability of the German law follows
Right from Art. 40 EGBGB. The scope of the Rome IIVO is not open according to Art. 1 Para. 2 g).
Pursuant to Art. 40 Para. 1 Clause 1 EGBGB, claims arising from tortious acts are fundamentally subject to the law of the person52Acc. Art. 40 Para. 1 Clause 1 EGBGB, claims from tort are fundamentally subject to the law of that person
State in which the party liable for compensation acted. However, according to Art. 40 Para. 1 S. 2 and 3 EGBGB in
first instance demand that instead of this law the law of the state in which the success was also applied is applied
has occurred.
53 This option was open to the plaintiff here because the property inhabited by the plaintiff is on the
disputed image is located in Germany and the general personality rights of the plaintiff
In his opinion, this means that it is also disturbed or endangered in Germany, and therefore the place of success in Germany
lies (cf. BGH, judgment of 02.03.2010, loc. cit.).
54
In some cases, the existence of an awareness of the right to vote is required for the exercise of the right to vote
provided (cf. BeckOK BGB/Spickhoff, 53rd Ed. 01.02.2020, EGBGB Art. 40 Rn. 30, with further details). The written
Arguing with norms from the law of the place of success allows the conclusion of a tacit exercise
of the right of determination only if the circumstances also show that the injured party or his representative
knew the right to vote according to S. 2, i.e. had the necessary explanation awareness (to distinguish from Art. 40 para.
1 p. 2 and a choice of law according to Art. 42 p. 4th edition 2006, Art. 40 para. 38; cf. BeckOK BGB/Spickhoff, 53rd Ed.
01.02.2020, EGBGB Art. 40 para. 32; MüKoBGB/Junker, 7th edition 2018 para. 38, EGBGB Art.40 para. 38). For this view
The wording of Art. 40 Para. 1 S. 1 EGBGB also speaks, which assumes a "requirement".
55In the case law of the higher courts, on the other hand, the exercise of the right to vote is sometimes already affirmed,
if the plaintiff already refers to the legal bases of German law he has objected to in the statement of claim
referred to violations of personal rights and thereby expressed the objected
Wanting to have behavior assessed according to these legal principles (cf. also OLG Saarbrücken, judgment of
April 11, 2018 – 5 U 49/17 in NJW-RR 2018, 809, beck-online; Munich Higher Regional Court, decision of April 27, 2015 –18 W 591/15
in MMR 2015, 850 beck online; OLG Stuttgart, judgment of October 2nd, 2013 – 4 U 78/13 in NJW-RR 2014, 423, beck-online).
Furthermore, it can be assumed that the right to vote will be exercised if the parties enter into mutual
Written pleadings exclusively refer to norms of German law and court decisions made in this regard
have (cf. OLG Stuttgart loc. cit.). The Chamber agrees with the case law of the Supreme Court in this case. Of the
In his written submission, the plaintiff expressly referred to norms of German law. With that he just brings to
Expression that he wants the facts to be assessed according to German law. He makes his desire with it
sufficiently clear. The demand that the right to vote must also be expressly exercised would be pure formality.
56
Ultimately, however, the question can remain open because it follows from the above statements on jurisdiction that the
The place of action within the meaning of Art. 40 Para. 1 Sentence 1 EGBGB is also in Germany.
57The defendant, heard personally by a representative at the hearing, stated that the
the disputed image was taken by herself using an airplane in German airspace. the
The taking of aerial photographs is not prohibited in principle and does not lead directly to the plaintiff's
reported impairment. However, it is necessary for the defendant to be able to offer its service at all.
The earth's surface is reproduced by many different aerial photographs. The defendant partially manufactures
these independently and some of the recordings are purchased from third-party providers. Up to the actual
Accessibility and usability in the service GM and E., however, requires further actions (e.g. upload) by the
defendants. Thus, the photographing of the property inhabited by the plaintiff is only part of a
multi-act action of the defendant, but an indispensable one, because the result of these actions lead to
the use of the image in the service G. M. and E..
58
The defendant could have a secondary burden of proof with regard to the place where they performed their actions
to be imposed, in such a way that it has to clarify where it is providing the service to G. M. and E.
for Germany (server locations or similar). However, in the present case it does not come down to that
if, as already stated above, at least from the overall view of the circumstances at hand, a
Provision of the services beyond domestic connection exists. On the statements on the domestic connection in
In connection with § 32 ZPO, reference is made to avoid repetition.
59b) The retrievability of the recording of the disputed property is an impairment of
privacy of the plaintiff.
According to the sphere theory, the general right of personality from Art. 2 Para. 1, Art. 1 Para. 1 GG is divided into,60According to the sphere theory, the general right of personality from Art. 2 Para the
Intimate, private and social sphere. The general right of personality in the form of the right to protection of one's own
Figuratively speaking, privacy includes the right to be alone (BGH GRUR 1996, 923 Ls. 1 – Caroline von
Monaco II). In the sense of a retreat for the individual, the sphere of personality protects "a space in which
where the individual is left to himself unobserved or with people of his special trust without
respect for social behavioral expectations and without fear of state sanctions"
(BVerfGE 90, 255 (260) = NJW 1995, 1015; cf. already BVerfGE 27, 1 (6) = NJW 1969, 1707; BVerfGE 34, 269 (281) =
NJW 1973, 1221, BeckOK GG/Lang, 42nd Ed. 1.12.2019, GG Art. 2 para. 41). This includes both the domestic area
as well as the garden. The areas of a residential property are those of public areas or adjacent areas
Private properties are not visible from, typically retreats of the respective user, which is why
Observations of other people as "spying" violate the general right of personality (NZM 2011, 799,
beck-online). This is to be assumed above all if the garden is provided with a privacy screen and thus
it is made clear that one does not want to be observed, especially when the recordings are overcoming one
fencing would be made and/or showed the apartment (cf. MMR 2011, 414, beck-online).
61
The plaintiff's private sphere is affected by the illustration, in that the entire inhabited by the plaintiff
House plot is shown on the Internet. It can remain undecided whether the plaintiff actually owns his property
provided with a privacy screen, since the mere depiction is already an impairment.
62c) However, the plaintiff has to tolerate this impairment according to Section 1004 (2) of the German Civil Code. Unlike the
Intrusions into the private sphere are not inadmissible from the outset (Raue/Hegemann, MAH copyright and
Media law, Part E. Right of public word and picture reporting Section 13 Word reporting, para. 52, beck-
on-line). However, it must be taken into account that encroachments on privacy are only in the overriding interest of the
General public are permissible under strict observance of the principle of proportionality (BVerfGE 27, 344 (351) = NJW
1970, 555; BVerfGE 32, 373 (379) = NJW 1972, 1123; BVerfGE 33, 367 (376 f.) = NJW 1972, 2214; BVerfGE 34, 238
(246) = NJW 1973, 609; BVerfGE 65, 1 (43 f.) = NJW 1984, 419, cf. BeckOK GG/Lang, 42nd ed. 1.12.2019, GG Art.2
para. 41).
63 It should also be noted that the recordings on the Internet by the service of the defendants GM and E. Millions
people are available. The impairment of the plaintiff's personality sphere obtained by the
In any case, the specific mechanisms of action of the Internet have a special intensity or quality.
64Nevertheless, his right to be alone is not affected by the illustration in such a way that the interests of the defendant
and the general public from Art. 5 GG have to take a back seat to the illustrations. The interest of the defendant from Art.5
Paragraph 1 of the Basic Law and Article 12 of the Basic Law outweighs the interests of the plaintiff from Articles 2 (1) and 1 (1) of the Basic Law.
65The freedom of information that follows from Art. 5 Para
freedom of opinion and freedom of the press protects people's need to get information from as many sources as possible
teach, expand their own knowledge and thus develop as a personality (BVerGE 27, 71 ff). In the
Consideration must be given in particular to the fact that in this case only the area is shown and
the identity of the plaintiff is not revealed. Neither persons nor details are recognizable in the illustration
would enable conclusions to be drawn about the lives of the residents of the house. Through the illustration from a bird's eye view
the viewer only gets an overall impression of a specific thing or location depicted. Thereby can
above all the location, size and scope of a property and house. Possibly are
other details can also be seen in the illustrations, such as a garden or pool area. The differentiability, whether
a garden or a pool is shown, however, must be accepted by the person concerned. The identifiability as
Lawn or water do not restrict the use of these areas as a retreat for private life
all because it is not possible to view a location in real time via the defendant's service. At the illustrations
these are just one-off snapshots. Thus, there is no spying by the defendant. the
The defendant does not depict specific individual objects, but rather the entire surface of the earth. On the
In the image at issue, the plaintiff's place of residence can be seen in a rough resolution from above - nothing more. It
the defendant was not concerned with granting personal insights into the life of the plaintiff. So stays
it is still possible for the plaintiff, despite the picture, to use the property he lives in undisturbed
Use observations as a retreat.
663) The plaintiff also has no claim for injunctive relief against the defendant from Section 1004 (1) sentence 2 BGB analogous to Section 823
BGB i. V. m. the general right of personality in the form of informational self-determination
Art. 2 para. 1 i. V. m. Art.1 Abs. 1 GG by the illustration of the house property at GM and E..
a) Regarding the applicability of German law according to Art. 40 Para. 1 EGBGB when asserting,67a) Regarding the applicability of German law according to Art. 40 Para. 1 EGBGB when asserting
Personal rights violations are referred to the above statements.
68
b) The fundamental right to informational self-determination guarantees the individual the authority to
disclosure and use of personal data (BVerfGE 65, 1 (43); 113, 29 (46); 117, 202 (228); 115,
166 (188); 115, 320 (341); 118, 168 (184); 120, 274 (312); 128, 1 (42); 130, 151 (183); 147, 50 (142 para. 236), BeckOK
InfoMedienR/Gersdorf, 27th Ed. August 1, 2019, Basic Law Art. 2 para. 17). The protection of the fundamental right to informational
Only personal or person-related data are subject to self-determination (BVerfGE 65, 1 (43); 113, 29 (46); 115,
166 (190); 118, 168 (184), i.e. H. all individualized or individualizable data (BVerfGE 147, 50 (142 para. 236),
BeckOK InfoMedienR/Gersdorf, 27th Ed. August 1, 2019, Basic Law Art. 2 para. 19). The constitutionally protected position finds
in the Federal Data Protection Act its specification (Federal Court of Justice, judgment of December 17, 1985 - VI ZR 244/84 -, para. 12, juris,
m. w. N.) or in the DS-GVO as the directly applicable law with priority.
69The Federal Data Protection Act is applicable. For non-public bodies, the BDSG applies according to § 1 paragraph 1 sentence 2 im
Within the material scope of the GDPR (Art. 2 Para. 1, Para. 2 lit. c). requirement for the
The applicability of the BDSG for non-public bodies is therefore fully or partially automated processing
personal data or non-automated processing of personal data in a
are stored or are to be stored in the file system, with the terminology resulting from the GDPR
(Art. 4 No. 1: "Personal data", Art. 4 No. 2: "Processing", Art. 4 No. 6: "File system"),
(Gola/Heckmann/Gola/Reif, 13th edition 2019, BDSG § 1 marginal number 7).
70 The defendant processes data as a non-public body. The aerial photographs are stored by them and in the
made accessible to the internet. The data set can be searched using various criteria. Included
location information (addresses) is linked to geodata.
71 In the present case, only personal data in the form of an identifiability of the property is used
where the plaintiff lives, based on the illustration. Because the defendant itself links the recording of the
property not with the person of the plaintiff, but only with the address, although here the marker is not yet
once pointing directly to the property itself, and the coordinates, when entered, the marker directly on the
plaintiff's property appears. Whether the image can be attested to be a personal reference is partial
made dependent on the applicable assessment horizon. On the one hand, the data processing
agency or a third party who uses the data (cf. Herbst, NVwZ 2016, 902, beck-online).
72Basically, personal data according to Art. 4 No.1 DSGVO is all information that relates to an identified
or identifiable natural person (hereinafter "data subject"); a
natural person who directly or indirectly, in particular by means of assignment to an identifier such as a
Names to an identification number, to location data, to an online identifier or to one or more special
Characteristics that express the physical, physiological, genetic, psychological, economic, or cultural
social identity of this natural person can be identified.
73 For the assumption that the defendant processes personal data, the following points of view argue:
74A personal reference can be given on the one hand if the data-processing body with which you normally
identify the person using the available tools and without disproportionate effort
could.
75
On the other hand, a personal reference can be given if the focus is on individual recognition by third parties
becomes. The possibility of identification by the potential users of the offered service should be decisive for this
data service, i.e. whether third parties independently establish a personal reference to the plaintiff based on the available data
can produce. At least it can be assumed that every third person goes to the plaintiff's residential street and
based on the doorbell a connection between the aerial photograph on GM and E. and the plaintiff as
person can produce.
76 The individual assignment of the data by the defendant compared to the users of the defendant is likely to be different
be of secondary interest from the point of view of the person concerned. What is decisive for those affected is rather the
Recognizability by users (neighbors, friends, acquaintances).
77Any arguments against the acceptance of personal data include: the fact that the aerial photograph of the defendant
depicts the property in anonymous form.
c) The question of whether the depiction of the property is personal data of the plaintiff, also with regard to,78c) The question of whether the depiction of the property is personal data of the plaintiff, also with regard
on the geo-coordinates associated with the figure (cf. Lindner, ZUM 2010, 292, 296), ultimately does not require one
Final decision, since the plaintiff has to tolerate the intervention in accordance with Section 1004 (2) BGB,
because the defendant has a legitimate interest within the meaning of Article 6(1)(f) GDPR.
79The question of whether there is a legitimate interest is to be decided purely normatively and initially under consideration
assess the purpose of the processing. Against the teleological background of Art. 6 Para. 1 lit. f GDPR, a
It is not possible to create a balance between the interests of the person concerned and those of the person responsible
only legal interests are of importance ("legitimate"), but must also be economic or non-material
Interests of the processor are taken into account (Albers/Veit BeckOK data protection law 31st edition, Art 6 DS-GVO Rn
49). A legitimate interest can also arise from exercising the right to freedom of opinion and
freedom of information (Ehmann/Selmayr/Heberlein, 2nd edition 2018, DS-GVO Art. 6 para. 26). Processing must
be necessary to realize the legitimate interests of the person responsible or the third party. This requires
that the exceptions and limitations relating to the protection of personal data refer to the
limit what is absolutely necessary. If that is the case, another prerequisite for the application of this legal basis is
that the interests, fundamental rights or fundamental freedoms of the data subject, the protection of personal
Data require, not predominate.
80 When weighing up, it must also be taken into account that the fundamental rights of the person concerned are protected by the
Data processing may be affected to varying degrees, depending on whether the data in question already
are publicly accessible or not (Ehmann/Selmayr/Heberlein, 2nd edition 2018, GDPR Art. 6 para. 28).
81
This consideration shows that the plaintiff, the pictorial representation of the affected property in the geo services
defendant must tolerate.
82The plaintiff relies on his right to informational self-determination in accordance with Art.1 Para. 1 GG i. In conjunction with Art. 2 Para. 1
GG According to this, the individual has the right to decide for himself who he gives which data and information
reveals itself. It must be taken into account here that the Basic Law is not of an absolute, unrestricted nature
The domination of the individual over his personal data proceeds, but rather through the thought of a social self-in
characterized by a personality that develops community and is geared towards communication. Also personal
Information, insofar as it is available, represents an image of social reality, which is not exclusively
Affected can be assigned. This is all the more true as the data are generally accessible sources such as the
public space, and only depict situations or states of the outside world.
83
On the other hand, the right of the defendant under Art.5 Para. 1 GG in the form of freedom of information, as already mentioned above
carried out to be observed. In addition, the defendant can also rely on Articles 12 and 14 of the Basic Law
support economic freedom of activity.
84 The interest of the defendant outweighs the interest of the plaintiff in the absence of a concrete connection
between the image of the house plot including address entry and the plaintiff as a person. It is undisputed that
the disputed depiction of the property of the plaintiff's wife's house at GM and E
bears the name of the plaintiff or other residents. It follows that the figure is also not enhanced
contains informational content relating to the person of the plaintiff or any other person.
85
In addition, there is no personality relevance in the image, since the entire world is shown next to it. Of the
The defendants are not interested in depicting individual individuals and putting their person in the foreground. This is
also recognizable from the anonymous figure. This shows that the person behind the figure is responsible for
the defendant resigns completely. Moreover, the defendant does not even establish a connection between the
pictured house plot and the plaintiff's address, since the marker does not come up when searching for the address
located on the plaintiff's property.
86A reopening of the oral hearing in accordance with Section 156 ZPO on the occasion of the unresolved
The plaintiff's pleading dated May 25, 2020 was out of the question, as there was no new decision-making element in it
factual presentation is included.
87III. The decision on the costs follows from §91 paragraph 1 ZPO.
88IV. The decision on the provisional enforceability follows from §709 S. 1 ZPO.
