VG der Freien Hansestadt Bremen - 4 K 1338/21

VG der Freien Hansestadt Bremen - 4 K 1338/21
Court:	VG der Freien Hansestadt Bremen (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 4(2) GDPR Article 6(1)(f) GDPR Article 58(2)(f) GDPR
Decided:	10.10.2022
Published:
Parties:
National Case Number/Name:	4 K 1338/21
European Case Law Identifier:
Appeal from:
Appeal to:
Original Language(s):	German
Original Source:	OpenJur (in German)
Initial Contributor:	Sara Horvat

The Administrative Court Bremen upheld the decision of a DPA to order the erasure of all personal data of a politician, which was recorded in an advisory board meeting and subsequently published on a website, as the processing lacked a legal basis under Article 6 GDPR.

English Summary

Facts

The controller published a screenshot of an advisory board video call meeting on his webpage, where among others, a local politician, the data subject, could be seen. As a response, the data subject filed a complaint to a DPA which, subsequently, issued a decision on the matter.

In the decision, the DPA stated that the publication of the screenshots and videos violated the personality right of the data subject. Even a possible justification pursuant to Article 6(1)(f) GDPR due to the fact that (1) the data subject is a public figure and (2) it would be in the public interest to know what he is doing, would not prevail over the data subjects interest to not be defamed. Information about the his work is available in the protocol of the meeting, which is available to the public. The general public could get a better picture of the work from the protocol than from a screenshot, which does not provide any context, except the visual appearance of the data subject. Therefore, there was no need to process the data by publishing it in a visual form on a website. The main purpose of the publication of the screenshot was to defame the data subject, not to inform the general public about his work.

The decision ordered the controller to erase all personal data and prohibited the future recording of videos or screenshots of the advisory board meetings.

Subsequently, the controller filed a lawsuit against the DPA's decision at the Administrative Court in Bremen.

Holding

In its decision, the court held that the decision from the DPA was legally correct and dismissed the case.

The publication of the screenshots and videos on a private webpage, which is mostly used by the data controller to express his views and not to inform the general public about current affairs, constituted a processing of personal data in the sense of Article 4(2) GDPR. Therefore, the data controller needed a lawful ground for processing in the sense of Article 6(1) GDPR. Due to the fact that the purpose of the processing was not in the interest of the general public, where the interest of the public would prevail over the interest of the data subject, but predominantly served to defame the data subject, the legal ground of Article 6(1)(f) GDPR could not be considered.

Also, there was also no need for the publication of the videos and screenshots. There were other (official) means to inform the public. The general public could watch the meeting live via web stream, protocols were published afterward. The erasure of the videos was justified as an act of the DPA under Article 58(2)(f) GDPR.

The court also confirmed the decision of the DPA to refrain from any future publications.

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

Tenor

The action is dismissed.

The costs of the proceedings shall be borne by the plaintiff.

The judgment is provisionally enforceable on account of the costs. The plaintiff may avoid enforcement by providing security in the amount of 110% of the amount enforceable on the basis of the judgment, unless the defendant provides security in the amount of 110% of the respective amount to be enforced before enforcement.
Facts

The plaintiff challenges the defendant's orders under data protection law.

The plaintiff is the operator of the website www...de. This site publishes under the heading "...". comments on social, primarily political topics. On the website, among other things, screenshots of a meeting of the advisory board ... held by online video conference were posted. of ... were published. Furthermore, YouTube videos of the same meeting with the titles "...", "..." and "..." were published and supplemented with an announcement text. After the video ... was blocked on YouTube Germany, instructions were published on the website describing how to circumvent the blockade.

After complaints had been received by the defendant about the aforementioned publications, the defendant contacted the plaintiff in a letter dated 10 February 2021 and asked him to answer some factual questions by 22 February 2021. In particular, the questions concerned whether the plaintiff had recorded the videos and published them on the platform "YouTube". The plaintiff allowed this deadline to expire, so that the defendant contacted him again in a letter dated 24 February 2021 and, referring to the possibility of ordering the questions to be answered by means of an administrative act, again requested that they be answered by 6 March 2021. After the unsuccessful expiry of the deadline, the defendant issued an order on 14 April 2021 obliging the plaintiff to provide information on the facts of the case. In an email dated 3 June 2021, the plaintiff refused to do so, citing his right to information and the right to refuse to testify under criminal law.

Thereupon, the defendant issued the decision in dispute on 17 June 2021, which contains the following orders:

1. the plaintiff shall not disclose the YouTube videos of the meeting of the advisory board ... held by online video conference on the website .... operated by the plaintiff. of ... from the internet. 2.

The plaintiff shall delete the screenshot of the meeting of the advisory board ... held by online video conference published on the website operated by the plaintiff. from the internet site. 3.

3. the plaintiff is prohibited from publishing future videos of the meetings of the advisory board ... held by online video conference on the website ... on the Internet site ... insofar as these videos show the participants of the meetings (members of the advisory board, guests, the public) and/or contain their voice recordings. 4.

The plaintiff is prohibited from publishing future screenshots of the meetings of the advisory board ... held by online video conference on the website .... on the internet site ... insofar as these videos show the participants of the meetings (members of the advisory board, guests, the public). 5.

(5) In the event that the plaintiff does not comply with the obligation under item 1 or does not comply with it in full by 14 July 2021, the defendant threatens to impose a penalty payment of 400 euros on the plaintiff.

(6) In the event that the Claimant does not comply with the obligation under Clause 2 or does not comply with it in full by 14 July 2021, the Defendant threatens the Claimant with the imposition of a penalty payment in the amount of EUR 200.

(7) For each infringement of the prohibition order in section 3, the defendant threatens to impose a penalty payment of 200 euros on the plaintiff.

(8) The defendant threatens to impose a penalty payment of 200 euros on the plaintiff for each infringement of the prohibition order in clause 4.

(9) The immediate enforcement of paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 is ordered.

(10) Costs of EUR 93.45 are assessed for the decision, to be borne by the plaintiff.

The defendant essentially justified these orders by stating that the publication of the videos and the screenshot constituted a violation of the GDPR, as the publications each involved the processing of personal data and were not legitimised by a legal basis. In particular, there was no consent of the persons depicted and the publications were not necessary to protect the legitimate interests of the plaintiff or a third party. In addition, the fundamental rights and freedoms of the persons concerned outweighed an alleged legitimate interest of the plaintiff. The defendant justified this balancing result, among other things, with the fact that the persons concerned were usually in their private living rooms, the publications on the I

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