AG Lörrach - 3 C 112/24
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| AG Lörrach - 3 C 112/24 | |
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| Court: | AG Lörrach (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 6(1)(a) GDPR Article 82(1) GDPR § 253 ZPO § 812(1) BGB |
| Decided: | |
| Published: | |
| Parties: | |
| National Case Number/Name: | 3 C 112/24 |
| European Case Law Identifier: | ECLI:DE:AGLOERR:2024:1028.3C112.24.00 |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | German |
| Original Source: | Landesrecht BW (in German) |
| Initial Contributor: | la |
A court held that in a lawsuit the same claim cannot be based on non-material damages under Article 82(1) GDPR as well as unjust enrichment alternatively. This makes the claim inadmissible.
English Summary
Facts
The data subject used the social network operated by the controller. Until 07 November 2023 it’s service was free of cost. After that, the controller explicitly demanded a consent for personalised advertisement. The data subject consented and did not opt for the payment model that would have allowed using the platform without consenting to the advertisement (“pay or okay”).
For the time before his consent, the data subject claimed €1,500 in non-material damages alleging that, without consent, the processing of his personal data for advertisement purposes had been illegal.
He alternatively based his claim on what the court refers to as a reversed licence analogy: Before consenting to personalised advertisement, the data subject had used the social network for 66 months. Referring to the post 2023 payment model’s monthly cost of €20, the data subject claimed 66 * €20 = €1,320 in unjust enrichment.
Holding
The court held that the claim based on two different legal bases was too vague and therefore inadmissible under § 253(2)(2) German Civil Process Order (Zivilprozessordnung – ZPO). This is due to the fact that if the court decides by, e.g., granting the claim on the basis of unjust enrichment, there would be no decision on the non-material damages. Therefore, the controller couldn’t determine if the data subject would sue again. This happens, when one claim is based on two matters of dispute rather than two legal bases for the same claim. The court held that non-material damages and unjust enrichment claims were two matters in dispute since the claimed damage is non-material while the claimed unjust enrichment is about a material amount of money that allegedly is still within the assets of the controller.
Both are two different things: A damage of the data subject does not necessarily correspond with a material enrichment of the controller and, vice versa, an unjust enrichment of the controller does not necessarily correspond with a damage of the data subject.
To make the claim admissible, the data subject would have at least needed to give a priority of legal bases the claim would be based on.
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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.
Guiding principle If non-material damages and at the same time a confiscation of material gain are requested in a single payment application, this constitutes an inadmissible alternative joinder of claims. Tenor 1. The claim is dismissed. 2. The plaintiff must bear the costs of the legal dispute. 3. The judgment is provisionally enforceable. The plaintiff can avert the defendant's 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 amount to be enforced before enforcement. Decision The value in dispute is set at €6,500.00. Facts Margin number 1 The parties are in dispute over claims arising from data protection violations. Paragraph 2 The defendant operated the social online network ... and the social media platform ... in the European Union and offered, among other things, services via ... that were free for private users until November 7, 2023. The plaintiff was registered with the defendant under the email address ... and ... and used these in particular to communicate with friends, to share private photos and for discussions with other users. The defendant placed personalized advertising for the plaintiff. By November 8, 2023 at the latest, the defendant required the defendant's express and comprehensive consent to do so, as the plaintiff's data was used for this purpose. The plaintiff gave his consent for one account. He has not used the other account since then at least. After November 7, 2023, the plaintiff never switched to the payment model, which does not include advertising. He continued to use the defendant's services with personalized advertising. Paragraph 3 The plaintiff claims that he suffered damages amounting to €1,500. The defendant was enriched with a value of €1,320 based on a reverse license analogy. Based on a license to be purchased, €20 per month should be assumed because the service can now also be purchased for this amount. Based on this, the plaintiff can therefore claim €1,320 for 66 months. Paragraph 4 The plaintiff submits from a legal point of view: The plaintiff's claim arises from Art. 82 GDPR, national claims for damages and a claim based on interference. The defendant's data processing for the purpose of placing personalized advertising was carried out in violation of data protection because no express consent was obtained by November 7, 2023. The fact that the defendant's actions were in violation of data protection is already clear from the ECJ decision C-252/21. The data processing was not necessary for the performance of the contract and it did not serve overriding interests. The plaintiff's damage is that the data was processed without permission in order to place targeted advertising. The damage also lies in the fact that a profile was created in violation of data protection law. The plaintiff's non-material damage is estimated at €1,500. This amount is appropriate because of the publication of the personal data and the aggravating circumstances of the case. In addition, the GDPR was deliberately circumvented. In addition, the commercial value of the personal data must be taken into account. The preventive purpose must also be taken into account. In addition, a claim arises from the national claims for damages and the claim for the return of the enrichment from an interference condiction. The amount of the interference condiction arises from a fictitious license fee. Paragraph 5 The plaintiff requests Paragraph 6 1. The defendant is ordered to pay the plaintiff non-material damages, the amount of which is left to the discretion of the court, but should not be less than €1,500.00, plus interest at a rate of 5 percentage points above the base interest rate since the action was brought. Paragraph 7 2. The defendant is ordered to delete the personal data collected between May 25, 2018 and November 2, 2023 on the plaintiff's usage behavior Paragraph 8 a. to the extent that the data is processed exclusively for advertising purposes, Paragraph 9 b. to restrict processing to purposes other than advertising purposes, insofar as the data is necessary for platform use. Paragraph 10 The defendant requests Paragraph 11 to dismiss the action. Paragraph 12 The defendant argues that claim no. 2 is an inadmissible alternative joinder of claims. The data processing was not carried out in violation of data protection law. The defendant obtained consent throughout for the following data processing: Paragraph 13 - Advertisements based on information from advertising partners on user activities. - When using data that the defendant receives from third parties about a user's activities on the third party's websites or apps or during other offline interactions (i.e. third-party data according to paragraph 16 of the statement of defense) to display advertisements for the specific user. - Data transmitted on the user's instructions. Paragraph 14 Data that directly identifies users personally (information such as the name or email address of users that can be used directly to contact or identify users) would be transmitted to advertisers if users instruct the defendant to share their contact information with advertisers so that they could contact users, for example, with further information about advertised products or services. Furthermore (especially usage data through the use of ... and ... ), the defendant had validly relied on the necessity for contract performance before April 5, 2023 and on the overriding legitimate interests from April 5, 2023 to the beginning of November 2023. Marginal number 15 There is no proof of delivery of the lawsuit in the court file. The defendant announced its intention to defend itself on April 17, 2024. Marginal number 16 The main oral hearing took place on September 23, 2024. Reference is made to the minutes. Reasons for the decision Marginal number 17 A) The lawsuit is only admissible with regard to claim no. 2 and inadmissible with regard to claim no. 1. Marginal number 18 I) The Lörrach District Court has jurisdiction. Marginal number 19 1) The international jurisdiction of the German courts arises from Article 79, paragraph 2, sentence 2 of the GDPR, because the plaintiff can choose to sue in the courts of his place of residence. Marginal number 20 2) According to the defendant's unobjectionable admission and the reference to Section 504 of the Code of Civil Procedure, the subject-matter jurisdiction arises from Section 39 of the Code of Civil Procedure, although with a value in dispute of €6,500, the regional court would have subject-matter jurisdiction under Sections 23; 71 of the Court Constitution Act. Marginal number 21 3) The local jurisdiction of the Lörrach district court arises from Section 44, paragraph 1, sentence 2 of the Federal Data Protection Act. According to this, domestic law stipulates that the plaintiff can also bring an action within the scope of the GDPR before a court at his or her habitual residence (for details: VGH Kassel decision of 1.12.2022 - 10 B 1898/22, BeckRS 2022, 39739). Marginal number 22 II) Claim no. 2 is not an inadmissible alternative joinder of claims (BGH GRUR 2011, 521; a. A. Stein/Roth, 23rd ed. 2016, ZPO § 253 marginal no. 55). In the case of alternative joinder of claims, a uniform legal claim is based on various grounds for action (BGH GRUR 2011, 521, marginal no. 8). It must be specified in which order the grounds for action are to be examined (BGH GRUR 2011, 521, marginal no. 10). The BGH's considerations relate not only to intellectual property rights (BGH GRUR 2011, 521, marginal no. 10), but also to general considerations, namely the legal concept of equality of arms (BGH GRUR 2011, 521, marginal no. 11). In addition, the BGH has already applied this case law to other areas of law (BGH NJW 2018, 1259; BGH decision of November 27, 2013 - III ZR 371/12, BeckRS 2014, 1621). Marginal number 23 However, this is much more a case of a cumulative accumulation of claims. Two different claims are being asserted, each relating to different data, namely data that is only necessary for personalized advertising and data that is also necessary for using the defendant's services. These are two different requests that are being pursued independently of one another. This application has not yet been objected to in the other case law (cf. LG Regensburg final judgment of April 15, 2024 - 75 O 1040/23, GRUR-RS 2024, 11690; LG Stuttgart judgment of April 23, 2024 - 55 O 74/23, GRUR-RS 2024, 11761; LG Stuttgart judgment of April 25, 2024 - 55 O 104/23, GRUR-RS 2024, 11758; LG Magdeburg judgment of February 29, 2024 - 10 O 530/23, GRUR-RS 2024, 8057). Marginal number 24 III) Claim no. 1, on the other hand, is an inadmissible alternative joinder of claims and thus the claim is too vague (Section 253 Paragraph 2 No. 2 ZPO) and inadmissible. Marginal number 25 1) With regard to the BGH case law on alternative joinder of claims, reference is made above (A) II)). Marginal number 26 2) Claim no. 1 is based on two different grounds as a single claim. The €1,500 is claimed once as non-material damage within the framework of Art. 82 GDPR and the national claims for damages and once as the return of the enrichment from the interference condiction. The enrichment and the damage are two different subjects of the claim, which is why there is an alternative joinder of claims. Paragraph 27 a) If the court now decides exclusively on the enrichment and omits the examination of the damage (or vice versa) because this would already justify the action, then the claim for damages would not be decided at all and the defendant would remain uncertain whether the plaintiff can or will take up the unresolved subject matter in a further proceeding (BGH GRUR 2011, 521, para. 12). The defendant would thus be exposed to the arbitrariness of the court as to which claim is examined. This would not be a sufficiently specific action within the meaning of Section 253 Para. 2 No. 2 ZPO. (Confirming this case law, e.g.: BGHZ 211, 189; BGH NJW 2023, 1361) This is inadmissible if there are two different subject matters in dispute because it is then unclear what is or was actually being decided on. Paragraph 28 The court comes to the conclusion that there are two different issues in dispute with regard to the legal consequence demanded. On the one hand, non-material damage is claimed as compensation and, on the other hand, the return of (material) enrichment is demanded as a result of a claim for restitution. The non-material damage is based on the person of the plaintiff. The unjust enrichment is a material value that is said to have remained with the defendant. The plaintiff's damage does not necessarily have to be accompanied by enrichment of the defendant. Enrichment of the defendant does not necessarily have to be accompanied by damage to the plaintiff. This means that two different facts are presented in a single payment request. In order for this to be a sufficiently specific claim, the plaintiff would have had to specify an order in which the court should have examined the various claims. Paragraph 29 b) The plaintiff has the power to determine an order by submitting auxiliary requests. He was informed of this in the oral hearing and he did not change his request. Paragraph 30 c) In contrast to the case law of the BGH in GRUR 2011, 521, the literature suggests the topos of alternative grounds for action, according to which the claim for payment is justified with two independent grounds for action, but the plaintiff can only claim the amount claimed once. This should be permissible and does not contradict the BGH case law, because in this case there is only one subject matter of the dispute. (MüKoZPO/Becker-Eberhard, 6th ed. 2020, ZPO § 260 paras. 25-27) However, such an alternative ground for action does not exist here. This can be seen from the fact that the two grounds for action do not pursue the same claim for payment. €1,500 is claimed for damages and no exact amount is claimed for unjust enrichment, but the grounds for action only show an amount of €1,320 (consideration of the plaintiff's reverse license analogy) as the reason. The lawsuit attempts to demonstrate that it is the same thing, but the different amounts alone make it clear that it is not the same payment request, which is only being demanded once. The plaintiff himself assumes that even if the return of the enrichment in the amount of €1,320 is awarded, there must be an additional claim for damages in the amount of €180. However, it remains unclear how these two claims relate to each other and whether the damage would be reduced by awarding the return of the enrichment. Conversely, it remains unclear whether an award of damages in the amount of €1,500 would still result in unjustified enrichment, because the damage according to Art. 82 GDPR relates to the plaintiff's very personal immaterial damages, which do not have to have anything to do with the proposed reverse license analogy. Marginal number 31 d) To the extent that a threefold calculation of damages is recognized in case law in the case of violation of personal rights (BGH NJW 2000, 2201) and can refer to the specific damage, the license analogy or the infringer's profit, it could well be assumed that there is a single subject matter of the action, which is simply based on different legal grounds. However, the threefold calculation of damages concerns material damages (related to intangible goods) (Dreier/Schulze/Specht-Riemenschneider, 7th ed. 2022, UrhG § 97 marginal no. 79). In this case, however, the plaintiff is claiming immaterial damage. The threefold calculation of damages cannot be applied to this. As shown, the plaintiff's immaterial damage must be strictly separated from the defendant's material enrichment. Marginal number 32 B) If the action is inadmissible, no decision may be made on its merits (BGH NJW-RR 2018, 974, marginal number 15). Marginal number 33 C) If the action is admissible, it is unfounded. Marginal number 34 There is no right to deletion or restriction of processing. The plaintiff is merely basing his claim on unlawful processing of his data, which is now lawful with regard to the account used (I) and no longer takes place at all with regard to the unused account (II). Marginal number 35 I) Consent has now been given with regard to the account that the plaintiff continues to use. The defendant claims that the data was processed unlawfully in accordance with Section 17 (1) (d) GDPR. However, originally unlawful data processing that subsequently became lawful does not justify such a claim. The decisive factor is whether the data was processed unlawfully for the purpose of requesting deletion. (BeckOK DatenschutzR/Worms, 49th Ed. 1.8.2023, GDPR Art. 17 Rn. 43). Data processing that was originally unlawful without the consent of the person concerned can become lawful through subsequent consent (approval). (Simitis/Hornung/Spiecker gen. Döhmann, Data Protection Law, GDPR Art. 17 Rn. 15, beck-online; Kühling/Buchner/Herbst, 4th Ed. 2024, GDPR Art. 17 Rn. 28a) Subsequent consent provides a legal basis for data processing in accordance with Art. 6 Para. 1 lit. a) GDPR. The deletion of the processing also only relates to the future. Since there is a legal basis for the future, the claim cannot exist either. Marginal number 36 These statements also apply to the claim under Art. 18 para. 1 lit. b) GDPR. Marginal number 37 The same result applies: LG Regensburg final judgment of April 15, 2024 – 75 O 1040/23, GRUR-RS 2024, 11690; LG Stuttgart judgment of April 23, 2024 – 55 O 74/23, GRUR-RS 2024, 11761; LG Stuttgart judgment of April 25, 2024 – 55 O 104/23, GRUR-RS 2024, 11758; LG Magdeburg judgment of 29.2.2024 – 10 O 530/23, GRUR-RS 2024, 8057. Margin number 38 II) With regard to the account that the plaintiff no longer uses, there is no subsequent consent. However, the data from this account is undisputedly no longer used. This means that there can no longer be any unlawful use of the data at the time of the last oral hearing. The claim therefore does not exist in this respect either. Margin number 39 D) The decision on costs arises from Section 91 of the Code of Civil Procedure because the plaintiff has lost in full. Margin number 40 E) The ruling on provisional enforceability is based on Sections 708 No. 11; 711 of the Code of Civil Procedure. Margin number 41 F) The value in dispute of claim No. 1 is €1,500. The value in dispute of claim no. 2 is estimated at €5,000 in accordance with Section 23, Paragraph 3, Sentence 2 of the RVG (cf. LG Regensburg final judgment of April 15, 2024 – 75 O 1040/23, GRUR-RS 2024, 11690; LG Stuttgart judgment of April 23, 2024 – 55 O 74/23, GRUR-RS 2024, 11761; LG Stuttgart judgment of April 25, 2024 – 55 O 104/23, GRUR-RS 2024, 11758; LG Magdeburg judgment of February 29, 2024 – 10 O 530/23, GRUR-RS 2024, 8057).
