OLG Frankfurt am Main - 16 U 52/23
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| OLG Frankfurt am Main - 16 U 52/23 | |
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| Court: | OLG Frankfurt am Main (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 17(1)(a) GDPR Article 17(3)(e) GDPR Article 82(1) GDPR § 242 BGB § 256 ZPO Art. 5(1) GG |
| Decided: | 14.11.2024 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 16 U 52/23 |
| European Case Law Identifier: | ECLI:DE:OLGHE:2024:1114.16U52.23.00 |
| Appeal from: | LG Frankfurt (Germany) 2-03 O 71/22 |
| Appeal to: | Unknown |
| Original Language(s): | German German |
| Original Source: | hessen.de (press release) (in German) Hessenrecht (in German) |
| Initial Contributor: | la |
A court held that there was a right to erasure of information about older Facebook postings deleted due to a violation of the community guidelines. For newer posts Facebook could rely on Article 17(3)(e) GDPR.
English Summary
Facts
The controller operates the social network Facebook. The data subject is a Facebook user. On the 16 September 2021 the data subject re-posted another user’s post on the alleged ineffectivity and dangers of Covid-19 vaccinations, claiming the “studies published by the CDC, the British government and Oxford University have shown that Covid-19 vaccines are ineffective”. On the same day, the controller removed this post and informed the data subject about this deletion who then appealed the decision without giving further reasons. The controller, however, did not change its decision.
The controller’s terms and conditions stipulate that all violations against the community standards expire after one year.
With his lawsuit, the data subject claimed, inter alia, the rectification of his data saved with the controller insofar as to remove all deletion and blocking entries from the controller’s system and to reset the counter that counts them; decide, by way of a declaratory judgement, that the controller was not allowed to remove the post and confer on the data subject any kind of blocking; unblocking the said Facebook post; €50 in damages.
The Regional Court (Landgericht Frankfurt – LG Frankfurt) had dismissed the lawsuit completely. The data subject then appealed the decision to the Higher Regional Court Frankfurt (Oberlandesgericht Frankfurt – OLG Frankfurt).
Holding
The OLG Frankfurt held that the controller had to delete all deletion and blocking entries older than 1 January 2021 and the entry referring to the 16 September 2021 and to reduce the respective counter accordingly. Furthermore, the OLG partially granted the data subject pre-court lawyer costs; the rest of the appeal was dismissed.
The legal basis for the deletion claim follows from Article 17(1)(a) GDPR. The controller was not able to demonstrate the necessity of the further processing of these data since the violations expired after one year according to the terms and conditions of the controller. After this deadline, violations cannot be used for sanctions anymore, so there was no reason to further retain these personal data.
The court did not accept the controller’s explanation that the further retention of the data was necessary for quality management purposes.
However, a legal basis for further retention could arise from Article 17(3)(e) GDPR (establishment, exercise or defence of legal claims). This applied for possible future lawsuits. Thus, the blocking entries the controller saved for the year 2021 did not yet have to be deleted (except for the one on the 16 September 2021 because this was already part of this very lawsuit, hence, a future lawsuit could not arise). Because possible claims from before 2021 fell under the statute of limitations, the controller also could not rely on Article 17(3)(e) GDPR regarding these claims.
The entries concerning the year 2021 were also not subject to erasure under Article 16(1) GDPR because they were not inaccurate. Rather, the entries were reporting the blockings and this was factually true.
The action for a declaratory judgement was not admissible under § 256 of the Civil Process Order (Zivilprozessordnung – ZPO). This was due to the subsidiarity of declaratory judgements. The court held that a declaratory judgement was not necessary since the data subject could also sue for performance or injunction.
The court also dismissed the claim for unblocking the said posting because the blocking was at least lawful under the new terms and conditions in conjunction with the community guidelines from 2022, which were lawful and valid and were forbidding fake news in the section “dangerous health information”. The court held that the postings contained “misinformation about vaccines” under the post-2022 guidelines, because public authorities had concluded this information was wrong and likely to lead to refusal of vaccinations. The court held that the controller had sufficiently shown that studies and public authorities had confirmed the effectiveness of the vaccinations. The court however explicitly did not decide whether the blocking was also legal under pre-2022 guidelines. However, there was still no right to demand unblocking, because at least they would be subject to new blocking under the new guidelines. Thus, under the dolo agit principle from § 242 German Civil Code (Bürgerliches Gesetzbuch – BGB).
However, the court noted, that in the light of the right to freedom of expression under Article 5(1) of the German Basic Law (Grundgesetz – GG) also criticism of government policies, authorities and health organisations must be possible. This was due to the indirect third-party effect of fundamental rights (mittelbare Drittwirkung). The court agrees that there were no absolute truths and science relied on the constant questioning of previous knowledge and that scientific knowledge can still be subject to falsification. Therefore, an objective, fact-based criticism could not be deleted under the community guidelines of the controller.
The court dismissed the claim for damages since there were no material as well as non-material damages. A material damage was not shown by the data subject. A non-material damage under Article 82(1) GDPR also required a minimum threshold of infringement that was not reached. A sole feeling of unease was not enough for a non-material damage.
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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
On the plaintiff's appeal, the judgment of the Frankfurt Regional Court, 3rd Civil Chamber, announced on January 26, 2023, is partially amended, with the appeal otherwise being rejected:
The defendant is ordered to correct the data stored by it about the plaintiff so that of the deletion and blocking notes according to the list on page 15 of the statement of claim, those that were made before January 1, 2021 and the deletion and blocking note dated September 16, 2021 are deleted from the user data record and the counter that records the violations underlying the individual blocks is reset to reflect these violations.
The defendant is ordered to indemnify the plaintiff from a claim for legal fees from law firm A in the amount of €179.27.
The action is otherwise dismissed.
The plaintiff must bear 85% of the costs of the legal dispute and the defendant 15%.
The appeal is not allowed.
The judgment is provisionally enforceable due to the above ruling on deletion against security in the amount of € 1,000 and otherwise against security in the amount of 110% of the amount to be enforced.
Reasons
I.
In connection with a text contribution removed by the defendant, which the plaintiff had posted on his social network1 account, the plaintiff is suing the defendant for the re-activation of the contribution and is asserting related claims for data correction, determination, injunctive relief and damages.
The text contribution that the plaintiff posted on his user account on September 16, 2021 came from another user channel and focused on the effectiveness and danger of vaccines against the Covid-19 virus. For the content, reference is made to the operative part under No. 3 of the district court judgment.
For the further facts and issues in the first instance, reference is made to the facts of the district court judgment.
It should be added that the defendant also removed the post on September 16, 2021. The plaintiff was informed of this by the defendant (notification in English, Appendix B 4, page 314 of the file). The plaintiff lodged an objection on the same day without giving any further reasons (page 17 of the file). The defendant stuck to its decision. The plaintiff (also) himself stated that the post came from a "conspiracy ideological channel".
The defendant submitted:
- Terms of Use with January 4, 2022 as the effective date (Appendix B 5).
- social network1 community standards without a date (Appendix B 6).
- a "Covid-19 Policy - Updates and Protective Measures" without a date (Appendix B 7).
It is undisputed that according to the directive on counting violations of Community standards submitted by the defendant (Appendix B 8, page 414 of the file), all counted violations "expire" after one year.
The plaintiff applied in the first instance for
1. the defendant to be ordered to correct the plaintiff's data stored by it so that all deletion and blocking notes are deleted from the user data record and the counter that records the violations underlying the individual blocks is completely reset;
2. to determine that the defendant had no right to remove the plaintiff's post on the platform www.(sozialesnetzwerk1).com mentioned under point 3, which was deleted on September 16, 2021, and to impose a block on the plaintiff because of this post in the form of a restriction on the possibility of use;
3. to order the defendant to reactivate the plaintiff's post [...reproduction of the text of the post...] that was deleted on September 16, 2021;
4. to order the defendant to refrain from blocking the plaintiff again for posting the text mentioned in point 3 on www.(sozialesnetzwerk1).com or from deleting the post;
in the event of a violation, the defendant is threatened with a fine of up to EUR 250,000.00, or alternatively detention, or detention, to be carried out on the board members;
5. to order the defendant to refrain from blocking the plaintiff on www.(sozialesnetzwerk1).com (...) without informing the plaintiff in advance of the intended blocking and giving him the opportunity to respond with a subsequent new decision;
in the event of a violation, the defendant will be threatened with a fine of up to EUR 250,000.00, or alternatively with detention, or detention, with detention to be carried out on the board members;
6. the defendant is to be ordered to pay the plaintiff damages in the amount of EUR 50 plus interest of five percentage points above the base interest rate since September 16, 2021;
7. the defendant is to be ordered to indemnify the plaintiff from legal costs
a) for the out-of-court work in the amount of EUR 538.95
b) for obtaining the coverage commitment for the out-of-court work in the amount of EUR 220.37 and
c) for obtaining the coverage commitment for the lawsuit in the amount of
EUR 540.50 by paying to the A law firm.
The regional court dismissed the lawsuit. For the reasons for the decision, reference is made to the reasons for the decision.
The plaintiff's appeal is directed against this, with which he continues to pursue his first-instance claims with the exception of claim 7, with which he only claims legal fees for the out-of-court work in the amount of €538.95.
The plaintiff is of the opinion that all of the defendant's deletions and blockings are unlawful because the defendant's general terms and conditions are incompatible with German general terms and conditions law with regard to the removal and blocking reservation. In this regard, he relies on the judgments of the Federal Court of Justice of July 29, 2021 (III ZR 179/20 and II ZR 192/20) and January 27, 2022 (II ZR 12/21). This applies both to the terms of use in the old version and to the new terms of use, which the regional court did not deal with. The new removal and blocking reservation in the defendant's general terms and conditions also does not meet the requirements of the Federal Court of Justice. The BGH has expressly clarified that the defendant, as the platform operator, is not entitled to "virtual house rules". The defendant is therefore not entitled to delete posts and block user accounts at its own discretion. Furthermore, taking the interests of the defendant into account, the BGH has clarified that the required hearing of the user with regard to the deletion of the post must take place immediately afterwards and, if a block is imposed, before this measure is carried out. A missed hearing cannot be made up for later and the illegality thus remedied. The authority to delete and block does not arise from supplementary contract interpretation either.
The regional court incorrectly assumed that the post in question violated the community conditions. It did not determine the meaning of the statements and did not address alternative interpretations that were mentioned in the written pleadings. In its political, not legal statements (“conspiracy ideological false claims”), the regional court apparently assumes that there is only one truth about “Corona” and that the defendant in the appeal has this knowledge. “Science” is also based on the constant and continual questioning of supposed findings. German law recognizes a “duty to tell the truth” only when it comes to factual claims about other people that are to their detriment, and especially not when it comes to political issues. The regional court does not say what exactly is “wrong” about the article, in particular it does not explain what is wrong about the statements about toxins and graphenocide. The fact that the vaccine was dangerous is now known to the court. Even the Federal Minister of Health admits a significant number of vaccine injuries (see BB p. 53 f.).
The plaintiff is of the opinion that the defendant also has no contractual basis to carry out a “truth check”.
The plaintiff is of the opinion that, against this background, the individual claims asserted are justified:
The asserted claim for data deletion (application 1.) is sufficiently specific and justified from the point of view of a right to deletion under data protection law (see BB 56 - 60 in more detail). Insofar as deletion and blocking notes are no longer relevant according to the defendant's own statement and are no longer counted as a violation, they are no longer of any use and the claim follows from Art. 17 Para. 1 lit. a) GDPR. The data processing in this regard is also not justified under Art. 17 Para. 3 GDPR. The right to deletion also arises from Sections 280 Para. 1, 249 BGB.
A claim for a declaratory judgment (application 2.) that the blocking of his profile was unlawful has already been confirmed several times by the higher regional court. In addition, there is the interest in rehabilitation and the right to effective legal protection, which justify an interest in legal protection.
According to the case law of the Federal Court of Justice, the claim for reactivation (application 3) arises from §§ 280 para. 1 sentence 1 in conjunction with § 249 para. 1 BGB.
A contractual claim for injunctive relief not to delete the deleted post again (application 4) was also affirmed by the Federal Court of Justice in cases of contractual or unlawful deletion on the basis of the aforementioned claim. There is a risk of repetition even in the event of reactivation in the meantime.
The asserted so-called "procedural claim for injunctive relief" (application 5) is sufficiently specific. A claim to refrain from blocking an account without prior notification and hearing arises from the concluded user agreement with § 241 para. 2 BGB in conjunction with § 1004 para. 1 BGB. A temporary ban without prior hearing is clearly unlawful due to the significant relevance of fundamental rights if it is based on mere breaches of contract. An exceptional case within the meaning of the BGH ruling of July 29, 2021 (III ZR 179/20) does not exist.
With regard to the claim for damages, the plaintiff is of the opinion that there is no inadmissible alternative joinder of claims and otherwise refers to his submission at first instance.
With regard to the claim for reimbursement of pre-trial legal costs, the plaintiff is of the opinion that the claim for exemption already follows from Section 280 Paragraph 1 of the German Civil Code and that there is therefore no need for delay in this respect. In this regard, he refers to numerous decisions of other higher regional courts. In the alternative, the plaintiff relies on the fact that the defendant was already in default with its main obligation from the time the post was deleted and blocked. The user agreement as a continuing obligation requires the defendant to provide its users with active use every calendar day, in particular in the form of a free exchange of opinions. A reminder was therefore not necessary. In addition, the defendant was in default due to the plaintiff's request to fulfill the contract prior to the appointment of the plaintiff's representatives.
The plaintiff finally requests leave to appeal on the grounds of fundamental importance.
The defendant requests that the appeal be dismissed.
With regard to the claim for data rectification (application 1), it explains in more detail why, in its opinion, a claim to delete all deletion and blocking notes from the user data record is not based on Art. 16 GDPR or on the contract. Among other things, because these are value judgements and the data is not incorrect. There is also no claim to deletion under Art. 17 Para. 1 GDPR. This is contradicted by the fact that this claim is not aimed at "correcting" data. In addition, this data - even if the violations occurred more than a year ago and are no longer considered a violation due to the passage of time - is necessary for the establishment, exercise and defense of rights (Art. 17 Para. 3 lit. c)). Content that violates the Community standards is still in breach of contract. It is therefore necessary for the defendant to document such violations for an impending or pending lawsuit. The plaintiff cannot simply file a claim for breach of contract and at the same time demand that the defendant delete its records of whether such violations have occurred. In addition, the documentation of such violations is also required in accordance with Art. 17 para. 3 lit. a) GDPR to implement the contractual relationship. This applies as long as the plaintiff continues to use the social network1 service. The defendant has a legitimate interest in documenting violations that are rightly or wrongly assumed (see response to the appeal, pp. 12 - 14). There is also no right to deletion because the plaintiff's personal data were processed lawfully in accordance with Art. 17 para. 3 lit. b) and d) (loc. cit., pp. 14 et seq.).
According to the defendant, there is neither a legal relationship capable of being established nor an interest in legal protection for the requested determination (application 2).
The defendant is of the opinion that the plaintiff is not entitled to a claim for restitution either (application 3). The regional court was right to assume that the article in question violated the ban on false information, as specified by the defendant's effective directive on Covid-19. This is also in line with its statement in the statement of defence (para. 44 ff.). In addition, this result also follows from the legal concept of Section 242 of the German Civil Code (BGB) due to the terms of use that have since been updated (written submission of January 18, 2023, para. 22 ff.). It believes that the plaintiff's grounds for appeal also lack any explanation as to why the regional court's reasoning was incorrect.
The regional court was right to reject the article-related claim for injunctive relief (application 4.) due to the lack of a risk of repetition. It is unfounded because the defendant would be entitled to remove the post again and impose a restriction on use in the future due to the content violating the contract based on Section 3.2 of the updated B Terms of Use. To the extent that the plaintiff claims that the defendant is "continuing its illegal deletion and blocking practice unchanged", this is done out of the blue and has no relevance to the present case in this general sense. It argues that on the basis of the new Terms of Use, in accordance with the requirements of the Federal Court of Justice, it informs the respective user of the reason for deletion and/or blocking as part of the hearing procedure.
The defendant continues to take the view that the plaintiff is not entitled to a blanket injunction (application 5). The regional court rightly assumed that this was already inadmissible. To the extent that the plaintiff believes that it is clearly evident in this case that the application only refers to measures which the defendant does not (also) base on statutory provisions, such a restriction does not emerge from the application, but it does not change the fact that the application is inadmissible. This is because the application is still not sufficiently specific. The defendant also takes the view that this blanket application is unfounded, even in view of the fact that there may be exceptions to the hearing requirement. For details, please refer to pages 24 - 26 of the appeal response.
The claim for damages (application 6.), according to the defendant, was rightly rejected by the district court. The application is inadmissible because it is based on different facts. In any case, it is unfounded (see appeal response p. 27 for more details).
The plaintiff cannot claim pre-trial legal costs (application 7.) simply because he is not entitled to any claims. The regional court also rightly assumed that reimbursement was only justified under the conditions of the debtor's default, the conditions of which were not met here (see the statement of defence, para. 157 ff.).
In a written submission dated April 15, 2024, the plaintiff referred to a ruling by the Higher Regional Court of Stuttgart, which affirmed a claim to deletion of entries detrimental to the user relating to completed violations of the Community Terms and Conditions under Art. 17 para. 1 lit. a) GDPR (Higher Regional Court of Stuttgart 4 U 49/23, p. 726 ff. of the file).
The defendant responded to this in a written submission dated August 8, 2024, that the case of the Higher Regional Court of Stuttgart differed from the present one in that the plaintiff there had named specific entries about deletion and blocking processes in the past. Furthermore, this claim was the only one remaining in the appeal, while here the plaintiff still sought the restoration of contributions, determination and injunctive relief. It refers to several decisions by higher regional courts that have rejected a claim for data correction if the breach of contract - as in this case - occurred more than a year ago, is no longer recorded as a violation counter and the user can therefore not suffer any disadvantages in the context of the ongoing contractual relationship.
At the hearing, the plaintiff applied alternatively to application 1,
a) to correct the plaintiff's data stored by the defendant so that all deletion and blocking notes that are older than October 25, 2023 are deleted from the user data record.
b) and further alternatively applied for the defendant to be ordered to delete the plaintiff's data stored by it about the post deleted on September 16, 2021.
After the oral hearing, the plaintiff submitted a statement on the legal opinion represented by the Senate at the hearing in a written submission dated October 23, 2024, for the more detailed content of which reference is made to pages 776 ff. of the file.
The defendant commented on the Senate's statements in the oral hearing on application 1 and on the auxiliary applications submitted by the plaintiff at the hearing in a written submission dated November 7, 2024.
II.
The plaintiff's admissible appeal is partially successful with regard to application 1 (so-called data correction claim) and application 7 (pre-trial legal costs); otherwise it is unfounded.
1. On application 1.
a) Contrary to the opinion of the regional court, the (main) application is only partially insufficiently defined and is therefore only partially inadmissible.
aa) The application is to be interpreted as meaning that the plaintiff is seeking the correction of all deletions and blockings noted by the defendant in the user data record up to the oral hearing, namely by way of deletion. This is made clear in particular by the auxiliary application a) made at the hearing, with which the plaintiff requests the deletion of the deletion and blocking notes that are older than October 25, 2023.
bb) Insofar as the plaintiff has not specified any specific deletion and blocking notes made by the defendant in his user data record, the application is inadmissible due to a lack of specificity. In a previous appeal by the parties, the Senate has already considered an application for deletion of all deletion and blocking notes from the user data record to be insufficiently specific within the meaning of Section 253 Paragraph 2 No. 2 of the Code of Civil Procedure because the individual notes were not specified (judgment of October 10, 2024 - 16 U 29/23). If the individual notes are not identified, in the event of a conviction, the scope of the legal force with regard to the obligation to delete would not be sufficiently determined and enforcement would not be possible.
cc) Here, however, the plaintiff submitted a list of all violations that had been noted up to that point (“blocking list”) in the statement of claim on page 15 (page 16 of the file). It contains 21 legible blocking notes with the date of the post and a brief justification for the deletion. In this respect, the plaintiff's main application is sufficiently defined. The Senate pointed this out at the hearing. The application also includes the deletion of the deletion and blocking note on the post dated September 16, 2021, which is the subject of this case, because it is part of the list and the plaintiff was of the opinion that the deletion/blocking that had taken place was unlawful and that the note about it should therefore also be deleted. The plaintiff did not specifically present any further notes regarding deletions or blockings made during the trial.
cc) Insofar as the Regional Court, in connection with the Senate's judgment of June 30, 2022 (16 U 83/20 there p. 8 f.), denied a need for legal protection for the action because the defendant's data had "since been cleared of the measures in dispute", this refers to the fact that after one year the defendant indisputably no longer counts violations for any measures (blocking, termination) or, in the wording of the directive on "counting violations" (Appendix B 8), these "expire".
However, this argument is undermined by the fact that the plaintiff already made it clear in the hearing before the Regional Court that he was - at least also - asserting a claim under data protection law. This only demands the deletion of certain personal data held. For such a claim, it is irrelevant whether the person holding the data can (still) use it to the detriment of the person concerned or not. There is a need for legal protection simply because it concerns the data subject's personal data, which the defendant continues to hold.
b) The application is partially justified, namely insofar as the plaintiff seeks the deletion of deletion and blocking notes due to violations before January 1, 2021 and due to the disputed deletion and blocking on September 16, 2021. However, there is no claim due to the more recent blocking notes in the "blocking list".
aa) The plaintiff can demand the deletion of the deletion and blocking notes before January 1, 2021 and the one from September 16, 2021 under Art. 17 (1) (a) GDPR.
According to this, the data subject has the right to demand that the controller delete personal data concerning him or her immediately if the personal data is no longer necessary for the purposes for which it was collected or otherwise processed. In the present case, the defendant, who has the burden of explanation and proof, has not been able to demonstrate that the notes relating to violations before January 1, 2021 and those of September 16, 2021 still need to be stored.
(1) The defendant's notes on the deletions and blocking of the plaintiff's data are personal data. According to Art. 4 No. 1 GDPR, personal data is information that relates to an identified or identifiable natural person. Data can relate directly or indirectly to data subjects. Information that does not have any direct significance for a data subject, but from which information about such a person can be derived, is indirectly personal (Spindler/Schuster/Spindler/Dalby, 4th ed. 2019, GDPR Art. 4 Rn. 6).
There is a connection to the plaintiff here because the data recorded by the defendant allows the conclusion that, although not necessarily by the plaintiff himself, but via his member account, posts were made that violated the defendant's community terms and conditions and that the defendant took action as a result.
(2) The data is no longer necessary for the purposes for which it was collected. The data was originally collected to document an alleged violation of the terms of use by the plaintiff and to use this as the basis for further measures, such as the temporary or permanent blocking of the account and, if necessary, termination of the contractual relationship. This purpose has ceased to apply since, in accordance with the directive on counting violations of community standards presented by the defendant (Annex B 8), all counted violations "expire" after one year, i.e. they can no longer be used as the basis for contractual sanctions. A cessation of purpose is generally assumed if and to the extent that the data is out of date due to actual developments (Paal/Pauly/Paal, 3rd ed. 2021, GDPR Art. 17 para. 23). This is the case if the defendant can no longer base contractual measures on the violations that have occurred under its own terms.
(3) With regard to the thirteen violations that occurred before January 1, 2021 and the violation in dispute on September 16, 2021, the defendant cannot rely on the fact that the continued processing of the data in the form of storage is now necessary for another purpose.
Despite a cessation of purpose, there may be no obligation to delete the data if the data is necessary for another purpose. In such a case, however, the change of purpose must again comply with the requirements of Art. 6 GDPR, in particular Art. 6 Para. 4 GDPR (Spindler/Schuster/Spindler/Dalby, 4th edition 2019, GDPR Art. 17 Rn. 4). Admissibility under Art. 6 Para. 1 b GDPR is not given. Data processing is necessary within the meaning of the provision to fulfill a contract if the contract could not be fulfilled without processing the data to the extent claimed (Spindler/Schuster/Spindler/Dalby, 4th edition 2019, GDPR Art. 6 Rn. 6; Paal/Pauly/Frenzel, 3rd edition 2021, GDPR Art. 6 Rn. 14). The burden of proof for this lies with the controller (cf. Art. 5 Para. 2 GDPR). The defendant has not demonstrated a necessity in this sense.
To the extent that the defendant argues that continued storage is necessary for quality assurance, this is not convincing. The defendant, who is obliged to provide information and evidence, does not explain in more detail how storing the process helps to avoid future errors. In particular, it remains unclear why this must be done in the form of storing a personal reference to the plaintiff and should not also be possible in an anonymized form, i.e. by removing the personal reference. It is not clear why the defendant cannot store cases in which it has confirmed violations without a specific reference to the user for the purpose of later comparison in the service of uniform handling without reference and naming the user.
However, the storage of the plaintiff's personal data in connection with the blocking is partly necessary within the meaning of Art. 17 Para. 3 e GDPR for the assertion, exercise or defense of legal claims. The defendant has also understandably invoked the fact that it must document such violations for an impending lawsuit. As long as a user can still file lawsuits because of a deletion or blocking, the defendant has a legitimate interest in keeping its records of whether such violations have occurred, even if it can no longer impose sanctions on the violations itself. However, such an interest does not exist for violations that occurred before January 1, 2021, because the defendant can rely on the expiration of the limitation period under Sections 195 and 199 (1) of the German Civil Code when making a claim. However, its legitimate interest still exists for the seven violations from 2021 listed in the list.
To the extent that the defendant argues that the documentation of the disputed violation of September 16, 2021 is necessary for legal defense, this is not comprehensible because the process is documented in the legal and court files. The defendant has not explained that additional information is stored in the user data set that it needs for legal defense. Furthermore, there is no discernible reference to the defendant's fulfillment of contractual obligations, as required by Art. 6 (1) b GDPR.
The defendant's request at the hearing to grant her a grace period on the question of the extent to which the notes on deletion and blocking in the user data record are still required by the defendant could not be granted. The requirements of Section 283 of the Code of Civil Procedure for this were not met. The plaintiff, at the latest in a written submission dated April 15, 2024, submitting a judgment of the Stuttgart Higher Regional Court, denied in detail that it was not clear why the defendant still needed the notes after more than a year. The defendant did not fail to recognize the legal significance of this question either, because it had already made its own statements on this question in the response to the appeal.
bb) Because of the deletion and blocking notes on violations of community conditions that occurred from January 1, 2021, the plaintiff is also not entitled to a right to deletion under Art. 16 (1) GDPR. According to this, the data subject has the right to demand that the controller correct any incorrect personal data concerning him or her. Such a case does not exist because the notes on the deletion of the plaintiff's posts and the blocking that occurred as a result are not incorrect. They correctly reflect that the defendant blocked the plaintiff in certain cases or deleted posts by him. Whether this was done rightly or wrongly is not a question of correctness within the meaning of Art. 16 GDPR.
c) There is no need to decide on the auxiliary applications, as the main application is at least partially successful. The auxiliary application under a), according to which only a limited part of the violation notes would have to be deleted in terms of time, would also not be justified according to the explanations on the main application for the violations from January 1, 2021. The subject matter of the auxiliary application under b) is already covered by the main application and is also successful in this respect.
2. Regarding the application under point 2.
This application for a declaration that the defendant had no right to remove the plaintiff's post deleted on September 16, 2021 and to impose a ban on the plaintiff in the form of a restriction on the possibility of use is not admissible.
a) The plaintiff is not seeking to establish a legal relationship within the meaning of Section 256 of the Code of Civil Procedure, at least not a current legal relationship that still has consequences.
The filing of both a general declaratory action and an interim declaratory action is only admissible if they concern the existence or non-existence of a legal relationship. A legal relationship is formed by the legal relationships between persons and persons or things that arise from a specific life situation. However, individual preliminary questions or elements of a legal relationship, the existence of which alone does not lead to any specific legal consequences, do not constitute a legal relationship (BGH, MDR 2015, 352, para. 23; BGH, WM 2011, 1125, para. 19). For example, as a rule, an action cannot be brought to establish that the termination of an employment or rental contract is invalid; instead, the action must be directed at the fact that the contract - which forms the legal relationship - was not terminated by the termination.
The possible illegality of the blocking in question does not in itself result in any specific legal consequences, but merely forms an element of any claims linked to it, such as for damages or the cessation of further blocking, which the plaintiff is also asserting here. The question of the illegality of an action is directed only at the legal assessment of a process and is only a preliminary question of the legal consequences that can follow the process. In this respect, too, the possible illegality of the blocks that have been imposed is only a preliminary question of a legal relationship, namely the contractual authority of the defendant to take further measures.
A corresponding application of the procedural provisions on the continuation declaratory action under Section 113 Paragraph 1 Sentence 4 of the Code of Administrative Court Procedure is not possible from the outset due to the lack of an unintentional regulatory gap in civil proceedings (see also the Senate's judgments of September 29, 2022, case number 16 U 49/21 and June 30, 2022, case number 16 U 83/20 on the above).
b) In addition, there is no interest in legal protection for a corresponding determination. The plaintiff can assert the conceivable legal consequences of an unlawful partial blocking with claims for benefits and he is also asserting them in this legal dispute (right to activation, right to refrain from future deletion/blocking, damages). There is also no interest in legal protection because the plaintiff fears that the defendant could impose more severe contractual sanctions against him in the event of a further - then first - violation after a - wrongly assumed - first violation. The plaintiff believes that the determination is therefore suitable for creating binding clarity so that a future blocking or deletion or termination of the user agreement with regard to the disputed post cannot be considered. However, a legally binding judgment on the basis of a claim for performance to reactivate a post (or in this case the determination that this has been dealt with) and to refrain from further deletion or blocking because of this post already takes this into account sufficiently.
Contrary to the opinion of the appeal, an interest in legal protection does not arise from a need for rehabilitation with regard to the discriminatory after-effects of the blocking. The plaintiff has not presented any specific facts from which the discriminatory after-effects and the tangible impairment of his social position that he claims - in the abstract - are supposed to arise. It has not even been stated that the blocking became known to third parties because of the post and could therefore have resulted in an impairment of honor or reputation. In addition, there is also no legal relationship in this respect. The decision of the Federal Court of Justice, which the plaintiff relied on in order to file a request for a continuation determination (BGH, judgment of March 9, 2012, case number V ZR 115/11), concerns a different arrangement in this respect. There, the Party1 federal chairman was denied access to the hotel after a hotel booking had been confirmed due to house rules. The accommodation contract was a contractual relationship to which specific legal consequences were linked. The parties disputed whether this had been effectively terminated and thus the validity of this legal relationship.
3. On the application under point 3.
The regional court rightly denied the plaintiff's claim that the defendant be ordered to reactivate the plaintiff's post that was deleted on September 16, 2021. The plaintiff is not entitled to a contractual claim from the user agreement that is the only possible claim in this regard.
a) However, the plaintiff is fundamentally entitled under the user agreement concluded with the defendant to have the defendant display his contribution on the social network social network1. There is a user agreement between the parties, within the framework of which the defendant has undertaken to make its products and services available to the plaintiff in accordance with No. 1 of its terms of use in order to give him the opportunity to contact and exchange information with other users, in particular to send messages and share data such as texts, photos and videos. It follows that the defendant may not delete contributions that the plaintiff has posted on his network without reason (BGH, judgment of July 29, 2021 - III ZR 179/20 -, para. 28; judgment of July 29, 2021, III ZR 192/20 para. 40; judgment of January 27, 2022, III ZR 12/21, para. 34).
b) However, the defendant can refuse to reactivate the post because, due to the new version of the terms of use in conjunction with the community standards that were included in the contractual relationship after the post on August 27, 2022, it would be entitled to remove the post reposted by the plaintiff, namely from section 3.2 of the terms of use (Appendix B 5, pages 315 ff. of the file) in conjunction with the regulation on "false reports" in the section "Dangerous health information" of the community standards (Appendix B 6, pages 328 ff. of the file). This gives the defendant the right to refuse to reactivate the post, which it has already relied on in the first instance. According to Section 242 of the German Civil Code (BGB), a person entitled to a claim cannot demand a service that he would have to return immediately (so-called dolo-agit objection, see Grüneberg/Grüneberg, BGB, 83rd ed., Section 242, para. 52 with further references). It can therefore remain open for the claim to re-activation whether the removal of the plaintiff's contribution on September 16, 2021 was justified on the basis of the terms of use and the community conditions in the version applicable at the time or on the basis of a right of removal derived from a supplementary interpretation of the contract.
aa) The above-mentioned provisions of the updated terms of use and community standards are part of the user agreement between the parties.
(1) The new terms of use presented here have been effectively incorporated into the user agreement with the plaintiff. The defendant has undisputedly stated that in 2022 all users, including the plaintiff, were informed twice in the news feed about the new version, it was made available to them with a link and their consent was asked. The second notification pointed out that continued use beyond August 26, 2022 would express consent to the changes. The plaintiff continued to use the user account in question after August 26, 2022 - this also remained undisputed. The new terms of use were thus included in the contract ex nunc as of August 27, 2022 in accordance with Section 305 (2) of the German Civil Code (BGB). The inclusion procedure used corresponds to Section 305 (2) of the German Civil Code (BGB), which applies mutatis mutandis to changes to general terms and conditions. In particular, the agreement is not based on mere silence on the part of the user, but on behavior (continued use despite knowledge) and thus has the quality of an implied declaration (see the requirements for changes to general terms and conditions: Grüneberg, BGB, 83rd ed., § 305 para. 46; Müko-BGB/Fournasier, 9th ed., § 305 para. 91). With the new terms of use, the new version of the community standards presented here has also been included in the user agreement with the plaintiff. The parties did not contradict the Senate's understanding set out at the hearing, according to which the defendant's statement that the "updated B terms of use were changed together with the community standards" presented here (page 195 of the file) should be understood to mean that the community standards presented here were made available to users in the same way with the change to the terms of use in 2022. The plaintiff himself assumes that new community standards apply "in the meantime" (see pages 540 and 552 of the file).
(2) The new terms of use are not invalid under Section 307 (1) of the German Civil Code (BGB) to the extent that they provide for a right to remove a contribution in Section 3.2.
In its judgments of July 29, 2021, the Federal Court of Justice ruled that the right to remove in Section 3.2 of the 2018 terms of use was inappropriate for this reason alone. of Section 307 Paragraph 1 Sentence 1 of the German Civil Code (BGB), because the network provider has not committed itself in its terms and conditions to inform the user concerned immediately about the removal of a post, to inform him of the reason for this and to give him an opportunity to respond, which is followed by a new decision, which is accompanied by the possibility of making the removed post accessible again (see, for example, judgment of July 29, 2021 - III ZR 192/20, paragraph 97 ff.). This is exactly what the new terms of use 2022 provide for (Appendix B 5, page 321 of the file).
The regulation is not inappropriate because it only provides for a subsequent hearing with the possibility of a new decision. Contrary to the opinion of the appeal, the Federal Court of Justice does not require a prior hearing for the removal of a post, but only for the (temporary) blocking of the account: "The hearing of the user required under the above principles is required before carrying out this measure, insofar as the defendant intends to (temporarily) block the user account, with the exception of narrowly limited exceptional cases to be specified in more detail in the general terms and conditions" (BGH, judgment of July 29, 2021 - III ZR 179/21 para. 87). However, the regulation on blocking (restriction of the use of certain functions) is regulated in the following paragraph and is to be assessed separately under general terms and conditions. In addition, a prior hearing is provided for there ("intended restriction").
(3) To the extent that the plaintiff claims that the defendant's deletion and blocking practices do not meet the requirements of the Federal Court of Justice because they only make a general statement that a post violates the community standards without giving any specific reasons for doing so, this is not relevant to the objection based on Section 242 of the German Civil Code, because the defendant has already anticipated the hearing in this case. In the statements on pages 12 et seq. and 29 et seq. of the statement of defense, for example, they have explained in more detail which statements in the post violated which provisions in the community standards.
bb) The requirement for a right of removal under Section 3.2 of the terms of use, according to which the defendant may remove content that violates the community conditions or other agreed conditions and guidelines for the use of social networks1, is met. The passages of the article objected to by the defendant violate the provisions of the Community Conditions in the section "False reports" Part II. "Dangerous health misinformation". According to this, the defendant is entitled to remove "misinformation about vaccines" if "the health authorities" have come to the conclusion that the information is false and is likely to contribute to vaccination refusal; an example list follows. The criterion for whether a statement is "misinformation" is not whether it is scientifically established with absolute certainty that it is an untrue fact, but that either health authorities or "leading health organizations" (opening sentence) have reached this conclusion. In the linked Covid-19 guideline (page 197 of the file), it is accordingly referred to as "reviewed by expert health authorities".
(1) The defendant has presented three statements in the post distributed by the plaintiff and has provided evidence that these are "misinformation" about Covid-19 vaccines in the aforementioned sense.
Regarding the effectiveness of Covid-19 vaccines, it claims that "studies published by the CDC, the British government and the University of Oxford show that Covid-19 vaccines do not work".
The defendant has presented evidence that numerous studies since the beginning of the pandemic have shown that vaccinations effectively protect against a serious course of the disease and death from Covid-19 and that the assessment by health authorities to this effect is supported by an information brochure from the Federal Ministry of Health (see below (2), Appendix B 2). The plaintiff has not made any counter-argument to this. In particular, he has not named any corresponding studies by the CDC or the University of Oxford. In any case, he has not replied to the statement of defence. The defendant's statement is therefore to be regarded as admitted.
Regarding the danger of vaccines, it is claimed that an "internal document of the Medical Association" warns of "fatal side effects after the booster" and that overall the vaccination causes "extremely serious side effects due to blood clotting". These statements, made without any quantitative restrictions, are to be understood from the point of view of the average reader to mean that fatal or extremely serious side effects generally or at least very frequently occur.
The defendant has submitted an information sheet from the Federal Ministry of Health on this subject entitled "How safe are the COVID-19 vaccines" - "Effectiveness, risks and side effects" (Appendix B 2). This essentially shows that there can be side effects, vaccination reactions and, in isolated cases, vaccination damage (pages 254 f. and 282 ff. of the file). General fatal side effects and "extremely serious side effects" as assumed without reservation in the article are not mentioned. The defendant has also not countered this with any other findings, particularly from health authorities or "leading health organizations". He was also unable to produce the alleged "internal document of the Medical Association" mentioned above.
To the extent that the plaintiff relies in the grounds of appeal on the fact that the Federal Minister of Health has now admitted to a significant number of vaccine injuries, this does not emerge from the reports on announcements of measures and other statements by Health Minister C from spring 2023 (Appendix BB 54, page 582 of the file). The article "Long Covid and Post Vac: C is finally taking action" reproduced on the social network1 reports that the Federal Ministry of Health wants to initiate advice and assistance offers for those affected by Long Covid and Post Vac. "Post-Vac" does refer to long-term damage caused by vaccinations. The term post-vac or post-vac syndrome (PVS)
according to Wikipedia [accessed on October 19, 2024] summarizes long-term vaccination complications after a Covid-19 vaccination that exhibit long/post-Covid-like symptoms without having previously contracted Covid-19. It is not a clearly defined disease. A causal connection between COVID-19 vaccinations and the complaints attributed to "post-vac" has not been proven by studies, but several hypotheses are being discussed in science. The phenomenon has not yet been researched much. However, it is not a mass or at least frequently occurring consequence of the vaccination. In a statement by the institute1 on the subject of "post-vac syndrome" after COVID-19 vaccination dated May 19, 2023 (statement by the Paul Ehrlich Institute) on the subject of "post-vac syndrome" after COVID-19 vaccination, in: Paul Ehrlich Institute. As of May 19, 2023, accessed on October 19, 2024) it is pointed out that over 192 million COVID-19 vaccinations had been carried out in Germany by that date. The reporting rate for suspected cases related to the symptom complexes mentioned in the safety reports and attributed to "post-vac" is less than one suspected case per 100,000 vaccinations (0.73/100,000), which indicates that such suspected cases are extremely rare. The general statement in the post must therefore be classified as misinformation.
Finally, the post claims that "an international team of scientists" has found the presence of "toxins" and "graphene oxides" in vaccines against Covid-19.
The defendant has argued that the statement that "an international team of scientists" has confirmed the presence of graphene oxides is false. Graphene oxides are (inorganic) carbon lattices that are used because of their optical properties and conductivity (wikipedia). However, the defendant did not explicitly state that the information on "toxins" was also misinformation. Whether her statement is to be understood as meaning that the term "toxins" is intended to indicate that graphene oxides are to be classified as poisons can remain an open question. In any case, the defendant has proven by submitting a research text from correktiv.org (Appendix B 3, pages 302 ff.) that the approved Covid-19 vaccines do not contain graphene oxide. This is a journalistic text, but it cites corresponding information from the press spokesperson of the Paul Ehrlich Institute, a state institute, and the press spokesperson of the European Medicines Agency. Both have stated that they have no evidence of graphene oxide in Covid-19 vaccines. The plaintiff did not object to this, in particular did not name the "international team of scientists" who are said to have confirmed this.
It can therefore be assumed that the removed post contains at least three "misinformation about vaccines" within the meaning of the Community standards.
(2) The provisions in the Community standards on "misinformation" concerning "dangerous health information" in conjunction with the right of removal in No. 3.2 of the Terms of Use also withstand a content review according to Section 307 (1) of the German Civil Code. In this regard, a comprehensive balancing of the fundamental rights positions involved, in particular the freedom of expression of the users and the freedom of profession of the defendant, is important. In this respect, reference is made to the statements of the Federal Court of Justice in the judgment of July 29, 2021 - III ZR 179/20 - paras. 60 to 82.
According to their results, the provider of a social network is fundamentally entitled to require the users of its network to comply with objective, verifiable communication standards in general terms and conditions that go beyond the legal requirements. In the event of a violation of the communication standards, it may reserve the right to take measures that include removing individual posts and blocking network access (BGH of July 29, 2021, ibid., para. 78). However, there must be an objective reason for removing content and blocking user accounts. The provider may not arbitrarily prohibit individual expressions of opinion. From the fact that the communications platform does not provide for any thematic limitation according to the defendant's business model, but serves the general exchange of communication and information, it can be concluded according to the case law of the Federal Court of Justice that, in view of this free entrepreneurial decision of the defendant, a ban on the expression of certain political views would be incompatible with the users' fundamental right to freedom of expression and the requirement of equal treatment (Federal Court of Justice of July 29, 2021, cited above, para. 81).
(2.1) The ban on false, or at least unsupported, statements of fact about the alleged lack of effectiveness and the danger of vaccines at issue here is based on a fundamentally verifiable factual situation for which there is also an objective reason. The plaintiff points out, with some justification, that there is no legal "duty to tell the truth" as long as the statements do not involve factual allegations about other people whose personal rights are thereby affected. Incorrect and unsubstantiated factual statements are also generally covered by freedom of expression. However, by banning misinformation about vaccines, the defendant is acting in a legitimate public interest. Such information, which contradicts the state of knowledge of health authorities or recognized health organizations, is likely to stir up fears about such vaccines and thus deter people from taking preventive measures in connection with Covid-19. In addition to the health of the individual, these serve to prevent the spread of epidemic diseases and overload the public health system. The defendant itself states in the previous section of the Community Standards that it (also) wants to counteract this.
(2.2) Contrary to the plaintiff's opinion in his statement of October 23, 2023, this provision in the Community Terms and Conditions does not prohibit the plaintiff from expressing a particular political opinion. The prohibition in the Community Terms and Conditions refers to "misinformation", i.e. statements of fact, and not to (political) opinions. Specifically, the question of whether approved vaccines have a (preventive) effect against certain diseases and whether they often have fatal or very serious side effects is fundamentally open to proof of truth and is therefore a statement of fact. Such a statement remains a statement of fact even if it is made in a political discourse and therefore does not become a political opinion.
(2.3) However, when interpreting and determining the scope of the offence of "misinformation about vaccines" by means of the third-party effect of fundamental rights of freedom of expression under Article 5, Paragraph 1 of the Basic Law, account must be taken of this insofar as this also includes a critical examination of the state of knowledge of health authorities, recognized health organizations and also scientific institutions. In this regard, the plaintiff rightly points out in his appeal that there are no irrefutable truths, that "science" is also based on the constant questioning of supposed findings and that supposedly "secure" findings can change or at least be falsified. For this reason, it would be incompatible with freedom of expression to prohibit factual, reason-based criticism of the state of knowledge of health authorities, recognized health organizations or scientific institutions. However, the plaintiff has not made such criticism here. Rather, he has claimed in a blanket manner and without any substantive discussion of the current state of scientific knowledge presented above that vaccines against the Covid-19 virus have no effects and have fatal or very serious side effects after the booster. He has not been able to provide a single one of the pieces of evidence he cites in the text. This is therefore not a factual criticism of the state of medical and scientific knowledge.
In the above specification of the scope of freedom of expression, the Senate sees itself in accordance with the case law of the European Court of Human Rights (ECtHR) on Article 10 of the ECHR, which, according to the case law of the Federal Constitutional Court, is to be used as a guide to interpretation when interpreting Article 5 of the Basic Law. In its judgment of August 27, 2024 (2007/22 - Bielau v. Austria, in: AfP 2024, 409), the ECtHR approved the restriction of a doctor's freedom of expression in the case of "categorical and untrue public information" on medical issues (including the effects of vaccines) on a website if this is necessary to protect the health and well-being of others. It also pointed out that the statements were not only "categorical" but (in part) also scientifically untenable, justifying this with a "direct contradiction" to information from the World Health Organization (WHO). In addition, it pointed out that, according to its consistent case law on Article 10 of the ECHR, proof of truth can be required for factual allegations (all para. 44). Ultimately, the Court found a disciplinary measure taken by the Austrian Medical Association against the doctor, which was based on the fact that it is not generally prohibited to criticize vaccinations, but that "more nuanced criticism" is possible (para. 41), to be compatible with Article 10 of the ECHR.
The violation resulting from the renewed posting of the post would therefore justify its removal in accordance with Section 3.2 of the Terms of Use. This provision allows the removal of the entire post in question. The principle of proportionality does not require that, if there are several passages in a lengthy text such as the one in dispute, the defendant only removes the affected parts of a post. This would be incompatible with the mass business of a social network and the need to use automated procedures. Furthermore, the plaintiff did not claim that (at most) only part of the post should have been removed.
4. On the application under 4.
The regional court rightly considered the application for an injunction to block the plaintiff again for posting the text mentioned in point 3 on www.(sozialesnetzwerk1).com or to delete the post to be unfounded.
The appeal rightly points out that, in the opinion of the Federal Court of Justice, in cases of contractual or unlawful deletion of posts, the user may be entitled under Section 280 of the German Civil Code to a claim for refraining from further deletion and blocking of the account for this reason - and in addition to a claim for reactivation (e.g. BGH, judgment of July 29, 2021 - III ZR 179/20, para. 99 et seq.).
However, the regional court rightly denied the risk of repetition required by Section 1004 Paragraph 1 Sentence 2 of the German Civil Code (BGB). It remains to be seen whether the original deletion of the post on September 16, 2021 and the blocking of the plaintiff were unlawful due to the terms of use and community standards applicable at the time and whether there was a right to re-activation and thus also to injunctive relief. In any case, from the inclusion of the updated terms of use in 2022 and the updated community standards, the defendant is entitled to remove the post in the future according to the result under point 3. Based on this, if the plaintiff posts the post again, the defendant is entitled to remove it. According to section 3.2, paragraph 5 of the terms of use, the defendant is also entitled to block the plaintiff again or to restrict the use of certain functions of the social network1 for a certain period of time. As explained above, this clause in the new version is in line with the BGH's general terms and conditions requirements because, when interpreted correctly ("intended restriction"), it provides for the user to be heard beforehand. This means that the risk of another illegal deletion of the post and another illegal blocking of the plaintiff has been eliminated.
5. Regarding the application under point 5.
The application to instruct the defendant to refrain from blocking the plaintiff on www.(sozialesnetzwerk1.com (…) without informing the plaintiff in advance of the intended blocking and giving him the opportunity to respond with a subsequent new decision is also inadmissible.
The application is not sufficiently specific within the meaning of Section 253 Paragraph 2 No. 2 of the Code of Civil Procedure.
a) Injunction applications that merely reproduce the wording of the law are generally to be regarded as too vague and thus inadmissible (BGH, GRUR 2010, 749, marginal no. 21). In the present case, the injunction application does not reproduce the wording of the law, but is linked to an action by the defendant - the blocking of the plaintiff on www.(sozialesnetzwerk1).com. Nevertheless, the effect of the claim actually corresponds to the mere repetition of a legal situation, namely the legal situation in connection with the case law of the Federal Court of Justice on the requirements for imposing a block (judgments of July 29, 2021, loc. cit.).
In addition, an application for a ban must not be formulated so vaguely that the subject matter and scope of the court's decision-making authority (Section 308 (1) ZPO) are not clearly delimited, the defendant is therefore unable to defend himself exhaustively and the decision as to what is prohibited to him is ultimately left to the enforcement court (BGH, GRUR 2010, 749, para. 21). Such a case is present here. There is no case of an account block as an act of infringement or as an act that would only be permissible after a hearing and the opportunity to respond. The Federal Court of Justice has also made it clear in its decisions that a hearing before the measure is carried out can be dispensed with in narrowly defined exceptional cases to be specified in more detail in the general terms and conditions (see only BGH, NJW 2021, 3179, para. 87). There may also be a repeat case, for example, which makes a further hearing before a ban unnecessary. As a result, the infringement to which the asserted claim for injunctive relief is linked is not sufficiently defined. If the application were allowed, the defendant would have no opportunity to defend itself comprehensively and adequately (see also the Senate's judgments of June 30, 2022 - case number 16 U 229/20, July 20, 2022 - case number 16 U 90/21 and September 7, 2023 - 16 U 46/20).
b) In addition, the application would also not be justified. Even if the plaintiff could generally be entitled to a preventive injunction under Section 241 Paragraph 1 in conjunction with Section 1004 Paragraph 1 of the German Civil Code, the presumption of a risk of repetition based on the first offense on September 16, 2021 would have to be regarded as refuted. This is because the defendant acted on September 16, 2021 on the basis of its then general terms and conditions (Section 3.2 Terms of Use) and the parties have now mutually agreed on new terms of use, according to which the defendant has undertaken to hear the user before blocking. In such a case, it seems justified - especially since this is an abstract preventive injunction - to assume that the presumption of a risk of repetition has been refuted, even without a cease-and-desist declaration subject to penalty.
6. Regarding the application 6.
The plaintiff is not entitled to compensation for the blocking of his account for one month, which he claims in the amount of €50, from any legal point of view.
The application is sufficiently specific, after the plaintiff's representative made it clear at the hearing that he was primarily claiming non-material damage with the application and only secondarily basing it on material damage. However, it is not justified on either of the two grounds. It is not necessary to decide whether the blocking was unjustified, as there is no legal basis for such a claim for other reasons.
a) The plaintiff has not suffered any non-material damage.
aa) The requirements for a claim to monetary compensation for violation of his general personal rights (Article 2, Paragraph 1, Article 1, Paragraph 1 of the Basic Law) due to the deletion/temporary blocking of the plaintiff's user account (read-only mode) are not met.
A claim to non-material monetary compensation derived from Article 1, Article 2, Paragraph 1 of the Basic Law does not apply to every culpable violation of general personal rights. Rather, it requires that it is based on a serious infringement of general personal rights and that the resulting impairment cannot be satisfactorily compensated in any other way. Whether there is such a serious violation of personal rights that the payment of monetary compensation is necessary can only be assessed on the basis of all the circumstances of the individual case. In particular, the significance and scope of the intervention, i.e. the extent of the dissemination and publication, the sustainability and continuation of the damage to the interests of the injured party, the reason and motive of the person acting and the degree of his culpability must be taken into account (see e.g. BGH, GRUR 2022, 735, para. 44 - Traumfrau gesucht).
In the present case, the Senate is already unable to see that the defendant violated his general personal rights by unjustified deletion of the plaintiff's post and the associated temporary blocking of his user account (putting it in read-only mode). The general freedom of action vis-à-vis the state guaranteed by Article 2 paragraph 1 of the Basic Law does indeed give rise to an individual's right of defence against unjustified and, in particular, disproportionate bans of any kind. This is an expression of the constitutional asymmetry according to which citizens are in principle free, but the state is bound to them and thus accountable when it encroaches on their freedom. However, the fundamental right to general freedom of action, which is subject to the reservation of general laws, cannot be interpreted with the same generality as a value judgment of the constitution, according to which in every private law dispute the unnamed freedom to act independently of one's own will must guide the interpretation of private law by way of indirect third-party effect. The freedom to implement a certain behavior at one's own discretion cannot, in principle, be used against private law organizers or providers such as the defendant by invoking the general freedom of action to restrict their ownership powers (cf. BVerfG, NJW 2018, 1667, para. 37). Even taking into account the fact that the contractual relationship between the parties is shaped by the indirect third-party effect of the parties' fundamental rights under Section 241 (2) of the German Civil Code (BGB), a restriction of communication options that are only available to the plaintiff on the basis of the user agreement concluded with the defendant, which is contrary to his duty, does not violate his general personal rights (see also Munich Higher Regional Court, MMR 2021, 71, para. 86).
Even if the temporary deletion of the plaintiff's comment and the temporary blocking of user options on the defendant's internet platform were nevertheless considered to constitute a violation of the plaintiff's general personal rights, this would in any case not constitute such a serious violation of rights that the award of monetary compensation would be required. The temporary blocking of the plaintiff's profile was not associated with a comprehensive restriction of his personal development in the aforementioned sense. During the period of temporary functional restrictions, the use of his social network1 account was not completely suspended; he could continue to receive messages and access his "highly personal content" and view third-party content on the social network1 service without restriction. He was only prevented from publishing posts on social network1, but not from expressing his opinion in any other way. In this respect, the plaintiff's argument that, according to the highest court rulings, the content created by users of social networks such as social network1 is relevant to personal rights is not valid. This is because it does not provide any information as to whether a blocking of the user account is of the severity of an (alleged) violation of personal rights required for monetary compensation.
Since the blocking was not announced publicly and was not pronounced by a government agency but merely by a legal entity under private law, there is no serious fear of a pillory effect.
bb) The requirements for a claim for non-material damages under Art. 82 GDPR are also not met.
According to Art. 82 GDPR, any person who has suffered material or immaterial damage due to a violation of this regulation is entitled to compensation from the controller.
(1) The possible continued use of the plaintiff's data held by the defendant during the partial blocking of his account does not constitute a violation of the mandatory provisions of the GDPR. This was based - as explained below - on the plaintiff's prior consent to the defendant's terms of use (Art. 6 para. 1 lit. a GDPR), which is not tied to the defendant also fulfilling its contractual obligations and therefore also includes periods in which the plaintiff's account is blocked.
(2) The temporary partial blocking of the plaintiff's user account does not constitute processing of his data within the meaning of Art. 4 no. 2 GDPR. For this reason, it is not apparent that the partial blocking of the service's usage options violated the provisions of the GDPR. At most, it was a restriction of processing within the meaning of Art. 6 para. 1 lit. a GDPR. of Art. 4 No. 3 GDPR, because this prevents the collection and further processing of the plaintiff's data. However, the GDPR does not give the plaintiff any right to have his data entered as posts (messages/comments) further processed by the defendant and made accessible to other users. Such a right arises solely on a contractual basis. It is also not otherwise clear which provision of the GDPR the defendant is said to have violated by partially blocking the user account.
(3) The deletion of the posts did not cause the plaintiff any immaterial damage within the meaning of Art. 82 GDPR, which is why it can remain open whether the deletion of a text contribution can even be qualified as data processing within the meaning of Art. 4 GDPR.
Art. 82 GDPR cannot be interpreted as giving rise to a claim for damages for every individually perceived inconvenience or for minor violations without serious impairment of a person's self-image or reputation (Plath/Becker, DSGVO/BDSG, 4th ed. 2023, Art. 82 DSGVO, marginal no. 7). Even if the literature, with reference to Recital 146 of the GDPR, occasionally takes the view that effective enforcement of European data protection rights requires a deterrent effect and the waiver of the significance threshold applicable under previous law (cf. BGH, NJW 2017, 800) (Gola/Heckmann/Gola/Piltz, loc. cit., Art. 82, marginal no. 14), this does not justify compensation for minor non-material damage. Data protection law per se protects a subjective right that has a strong connection to the personal feelings of the individual. Nevertheless, Article 82 GDPR should not be interpreted in such a way that it gives rise to a claim for damages for every individually perceived inconvenience or for minor violations without serious impairment of a person's self-image or reputation (Plath/Becker, op. cit., Article 82 GDPR, marginal no. 7). In particular, the reference to "full and effective compensation" in Recital 146 of the GDPR cannot be understood in this sense. The protection of the right to informational self-determination as a component of the general right of personality under Article 2(1) of the Basic Law and the protection of personal data under Article 8 of the Charter of Fundamental Rights do not generally require such compensation. This may be different in cases where the data protection violation affects a large number of people in the same way and is an expression of deliberate, unlawful and large-scale commercialization (Plath/Becker, op. cit., Article 82 GDPR, marginal no. 8). However, this is not the case here. Accordingly, it must be an objectively comprehensible impairment of personality-related interests, which may no longer be "particularly serious", but must nevertheless have a certain weight for the person affected (Plath/Becker, op. cit., Art. 82 GDPR, para. 7). Another argument against a further extension of non-material damages to minor damages is the considerable risk of abuse that would accompany the creation of a claim for monetary compensation with almost no conditions in terms of legal consequences, particularly in the area of data protection law. In view of this and the associated complete departure from the previously applicable legal situation, it would have been expected that such a change would have been clearly expressed in the text of the regulation or in the recitals. However, this is not the case.
The plaintiff has not presented an impairment of sufficient weight. The alleged inhibition in the development of personality through the suppression of an individual post is at best of a minor nature, which does not justify the award of non-material damages. The defendant's motive for carrying out a deletion must be taken into account. The defendant does this to remove alleged "hate speech" with the intention of protecting the personal rights of other users. If a claim for damages were to be affirmed in such cases, an unreasonable tension would arise between the portal operator's obligation to delete content when it is aware of illegal content on the one hand and the disproportionate risk of damages associated with this on the other (cf. BGH, NJW 2021, 3179, para. 77). The defendant would already be exposed to claims for damages if it had carried out an incorrect balancing of interests in the context of its obligation to delete.
b) Material claims for damages are also excluded.
aa) The plaintiff has no claim to damages instead of performance due to exemption from an obligation to perform ("impossibility") under Sections 280 Paragraph 1, Paragraph 3, 283 of the German Civil Code.
(1) Enabling the (full) use of the social network1 services is indeed a primary obligation of the defendant, which was withheld from the plaintiff for the period of blocking - with the exception of the read-only mode that was still provided. This service had become objectively impossible upon expiration of the blocking period due to the passage of time (Section 275 Paragraph 1 of the German Civil Code), so that the claim for performance was excluded from that point in time. This is because the active use of the communication platform provided by the defendant, in particular the current and time-related posting and commenting on contributions, which was not possible for the plaintiff at a later point in time during the blocking period. This meant that he was entitled to compensation for damages instead of performance for the duration of the unjustified blocking, without the need to set a deadline.
(2) However, the plaintiff did not suffer any financial loss, which is the only thing that can be compensated for in the case of contractual claims in the absence of an express order (Section 253, Paragraph 1 of the German Civil Code).
The plaintiff has not shown any specific damages he has incurred, such as expenses incurred in obtaining the service owed by the defendant from another source or lost profits, but has calculated his damages fictitiously.
The temporary loss of the ability to use the social network1 services alone does not constitute economic damage, taking into account the general understanding, but rather an individual reduction in enjoyment and thus non-financial damage. The same applies to the deletion of his post. When examining whether the temporary loss of the ability to use an object can be considered economic damage according to the general understanding, a strict standard must be applied. This is required by the legislative decision made in Section 253 of the German Civil Code, according to which non-material damage is only to be compensated in exceptional cases, namely in cases regulated by law (BGH, NJW-RR 2008, 1198, marginal no. 9). According to the highest court rulings, the usability of the Internet is to be regarded as an economic good, the constant availability of which is typically of central importance for the organization of one's life according to common opinion and where a malfunction as such has a significant impact on the material basis of one's standard of living; however, the possibility of worldwide exchange between its users, for example via social networks, represents only one individual sub-area that the Federal Court of Justice has listed for the overall importance of Internet access (cf. BGH, NJW 2013, 1072, marginal no. 17). The mere usability of the services that go beyond the read-only mode and are to be made available by the defendant in accordance with the contract, the possibility of commenting, posting, sharing and exchanging messages inherent in social networks, is not an economic asset in the sense set out above according to the required strict standard.
bb) The plaintiff is also not entitled to claim against the defendant the return of the value of the consideration received in accordance with Sections 346 Paragraph 2 No. 1, 326 Paragraphs 1 and 4 of the German Civil Code in the amount of €50.
As set out above, the defendant partially failed to provide the service it was contractually obliged to provide while the plaintiff's user account was blocked. The plaintiff was still able to read posts; however, as the defendant itself states in its terms of use, the core of its offer is the possibility of "expressing oneself and sharing content", which was lost when the block was imposed. Since the usage agreement between the parties is a continuing obligation, the defendant's failure to perform has resulted in partial impossibility of performance in accordance with Section 275 Paragraph 1 of the German Civil Code.
According to Section 326 Paragraph 1 Sentence 1 of the German Civil Code, if the debtor is released from performance due to impossibility, the claim to consideration is void and in the case of partial performance, Section 441 of the German Civil Code applies accordingly. However, in the present case, it cannot be determined that the plaintiff has provided a proportionate consideration that is not owed, which the defendant would be obliged to reimburse in accordance with Section 326 Paragraph 4 of the German Civil Code.
The Senate bases its considerations on the following:
The data automatically generated during use and the granting of the possibility of using it for certain advertising purposes by the defendant (see sections 2 and 3.3 of the terms of use in conjunction with the data policy) is the consideration for the current use of the social network itself. Therefore, only the value of the data usage rights made available by the plaintiff during the blocking period can be taken into account. The data generated by the plaintiff from the start of the ongoing contractual relationship between the parties, which the defendant was allowed to process within the scope of the usage rights granted to it and the consent given by the plaintiff, have already been compensated for by the corresponding possibility of using the social network.
In view of the legal concept of Section 346 Paragraph 2 Sentence 2 of the German Civil Code (BGB), it can be assumed that the contracting parties regard the service, in this case the entirety of the services to be provided by the defendant in accordance with the contract in connection with the social network, and the consideration, namely the granting of rights of use to the plaintiff for the data generated when using the social network, which in turn enables the defendant to display targeted advertising and thus sell it depending on the defendant's settings, as consistently equivalent for the duration of the continuing obligation. The extent to which the defendant's social network is used and in return rights of use to the plaintiff's usage data are granted remains open due to the nature of the continuing obligation. The scope and value of the service and consideration depend on the plaintiff's usage behavior. If he is particularly active on the social network and makes heavy use of the defendant's infrastructure, e.g. server capacity, his consideration increases accordingly due to the larger amount of usage data to which he has previously granted the defendant rights of use.
In the absence of any contrary explanation from the parties, the data provided by the plaintiff are therefore only consideration for the simultaneous use of the social network. Otherwise, the defendant's consistent service would become more expensive for the plaintiff as the contractual relationship continued, because more and more data would be generated for which the defendant rights of use were granted. There is no evidence in the contractual relationship for such an interpretation. The data automatically generated during use and the possibility of using it by the defendant are therefore the consideration for the current use of the social network itself.
However, the read-only mode, which was the only one available during the blocking period, was not only associated with a reduction in the defendant's services. Conversely, the plaintiff also saved the part of the consideration that corresponds to the part of the service owed that was not provided. This is because during the time in which he had to behave largely passively and could not make use of the options for posting, sharing, commenting and exchanging messages, correspondingly less usage data was generated by the plaintiff. The value of this was relativized in this respect because he did not provide information about his communication and consumption behavior through his own behavior (cf. similarly OLG Nuremberg, ZUM-RD 2021, 16, para. 167; LG Mannheim, judgment of May 13, 2020, case number 14 O 32/19, para. 186 - juris). Only to the extent that the plaintiff used the functions of the read-only mode did data also arise that he made available - no different to other online formats in which users consume content free of charge, such as news offerings. However, these services provided by the plaintiff are then, insofar as the data are not already required for the performance of the contract itself, the - equally reduced - consideration for the - reduced - services provided by the defendant.
cc) The plaintiff is not entitled to a claim based on unjust enrichment for the unauthorized use of his data for advertising purposes under Section 812 Paragraph 1 Sentence 1, 2nd Alt. BGB (intervention condiction), which would legally result in payment of a fictitious license fee.
Even if the defendant continued to use his personal data for advertising purposes during the period of unauthorized blocking and thereby generated income, this was not done without legal grounds. The defendant also had a right of use to the data and posted content provided by the plaintiff (e.g. photographs, text and possibly other works) during the blocking period and had consent to the data processing under data protection law. By concluding the user agreement, the plaintiff gave the defendant his consent to the authority regulated in the terms of use to "permanently store and use all contributions and data received" and at the same time effectively consented to the processing of the data generated during use under data protection law. He did not declare a reservation for the period of any (unjustified) blocking of the possibility of actively posting contributions.
Contrary to the plaintiff's opinion, this right of use granted to the defendant under contract and his consent under data protection law did not expire ipso iure during the period of an unlawful blocking because they were subject to the condition that the defendant fulfilled its obligations. Partial non-fulfillment on the part of the defendant in breach of contract does not affect the effectiveness of the granting of rights of use and the consent under data protection law. Nor can the plaintiff invoke any objection under Section 320 or Section 273 of the German Civil Code for the lack of a legal basis. According to the dispositive contract law for mutual contracts, in the event of a breach of contract by the other party, one's own contractual obligation only expires automatically in exceptional cases. The provision of Section 320 of the German Civil Code shows here that even if one party fails to fulfill its obligations, the other party is only entitled to a right of retention. The defendant's continued use of the advertising rights was therefore based on legal grounds. Section 812 of the German Civil Code only allows condiction if the legal ground is completely lacking, but not in the case of dilatory defenses. For a claim under Section 813 of the German Civil Code, there is no permanent defense. Mere suspensive defenses, such as those under Sections 320 and 273 of the German Civil Code, are not sufficient (MüKo-BGB/ Schwab, 8th ed. 2020, Section 813, marginal no. 6).
dd) The plaintiff has also not suffered any material damage that must be compensated under Art. 82 Para. 1 GDPR.
Material damage within the meaning of this provision is the material damage suffered by the person concerned in accordance with Sections 249 et seq. of the German Civil Code (BeckOK DatenschutzR/Quaas, 44th Ed., as of May 1, 2023, Art. 82 GDPR, marginal no. 28 et seq.). Material damage consists of the difference between two financial situations of the injured party: that actually created by the damaging event and that imagined by eliminating this event (Grüneberg/Grüneberg, 82nd Ed. 2023, before Section 249, marginal no. 10). The mere existence of unlawful processing is not sufficient (Gola/Heckmann/Gola/Piltz, ibid., Art. 82 marginal no. 12 with further references).
It has neither been stated nor is it apparent that the plaintiff suffered a reduction in assets as a result of the removal of his posts. The temporary restriction of the private communication option on social networks1 has no asset value in itself; it therefore does not constitute damage in this sense (OLG Munich, MMR 2021, 71, marginal no. 91). The mere affection interest cannot be replaced according to the civil law provisions on damages. For the rest, reference is made to the comments above under b) aa).
7. On the application under 7.
The application for exemption from pre-trial legal costs is partially justified. The plaintiff is entitled to exemption from the costs of the out-of-court work of law firm A in the amount of €179.27 under Sections 280 (1), 249 (1), 257 BGB. However, he cannot demand payment to law firm A because the debtor determines the manner of exemption (BGHZ 91, 77).
At the end of October 2021, the plaintiff commissioned law firm A to assert claims due to the deletion of the post on September 16, 2021 and the blocking of his account, and in a written statement dated October 29, 2023 (Appendix K 13, pages 52 ff. of the file), the law firm A requested the defendant, among other things, to lift the blocking and reactivate the post and to correct the data by deleting deletion and blocking notes.
a) The claim for reimbursement of the legal costs for this is based on Section 280 (1) of the German Civil Code (BGB), in any case on Sections 280 (1) and (2) in conjunction with Section 286 of the German Civil Code (BGB). Since the defendant violated its primary obligation to make it available on the network by deleting a post, this can already constitute a breach of duty within the meaning of the German Civil Code (BGB). of Section 280 Para. 1 of the German Civil Code, which justifies the appointment of a lawyer to pursue legal action appropriately (see Senate, judgment of September 7, 2023 - 16 U 46/20 - under II.8.a); The Federal Court of Justice also sees the basis of the claim in its judgments of July 29, 2021 directly in Section 280 Para. 1 of the German Civil Code. The conditions for default are also met because the plaintiff personally lodged an objection with the defendant on September 16, 2021 against the removal and the restriction on use. This is to be seen as a reminder.
A breach of duty by the defendant within the meaning of Section 280 (1) of the German Civil Code (BGB) was given by the removal and blocking on September 16, 2021, because according to the statements of both parties, it can be assumed that the terms of use and the community standards in the old version still applied in the relationship between the parties on September 16, 2021. The agreement on the right to remove posts and to block posts in section 3.2 of the terms of use is ineffective due to the lack of a hearing for the user according to the judgment of the Federal Court of Justice of July 29, 2021 (III ZR 179/20, ibid.). In addition, the community terms in the old version (Appendix K 43) do not provide for a ban on misinformation about vaccines. In section IV.21 (pages 128 et seq. of the file), they only contain a general note that "false reports" on social networks1 should be reduced. Although certain "misinformation" is named and described as undesirable, it is expressly stated that the defendant will not remove such false reports, but instead reduce their spread by displaying them in the news feed.
The appointment of a lawyer was also necessary for the appropriate legal action to be taken with regard to the lifting of the blocking on September 16, 2021. At the time of the lawyer's letter on October 29, 2021, the restriction on the possibility of use (blocking) had already ended. However, the defendant did not state that it had informed the plaintiff about the duration of the blocking and, after its expiration, about its termination.
b) Amount
The plaintiff calculated the claim as a business fee from a value in dispute of €13,000 because other unfounded and in some cases unasserted claims were also included. The value in dispute for the two claims that are to be regarded as originally justified here is €3,000. According to the decision on the value in dispute announced today, a value of €500 is to be set for the re-activation of a single post and €2,500 for the lifting of a block. However, reimbursement of legal costs cannot be claimed for the assertion of the deletion of the 13 violation notes that were successful in the trial before January 1, 2021, because at the time of the pre-trial assertion, any claims for deletions and blockings had not yet expired and therefore there was no right to deletion. The same applies to the note on the disputed deletion and blocking of September 16, 2021, because at the time of the pre-trial request, this violation had not yet been documented in files on the occasion of a legal dispute (see comments above p. 15). A total value of €3,000 is therefore to be set. This results in: 1.3 business fee €261.30 plus postage fee €20 = €281.30 less 0.65 credited against the procedural fee (paid by the plaintiff on page 16 of the statement of claim) of €130.65. This leaves €150.65. Plus VAT of 19% (€28.62), the amount is €179.27.
III.
The decision on costs is based on Sections 92 Paragraph 1 and 97 Paragraph 1 of the Code of Civil Procedure and is based on the amounts in dispute in the decision on the amount in dispute issued at the same time as this judgment. The plaintiff's partial success with regard to the application under point 1 was estimated at 2/5 of the value of the matter for this application of €2,500, since the number of all violation notices was not presented.
Contrary to the opinion, admission of the appeal was not necessary because neither the legal matter is of fundamental importance nor does the uniformity of case law or the development of the law require a decision by the appeal court (Section 543 Paragraph 2 of the Code of Civil Procedure). In its judgment of July 29, 2021 (III ZR 179/20), the Federal Court of Justice has already set out the essential principles for the contractual authority of the defendant to prohibit statements in its social network on the basis of community conditions, as well as for the procedure for deleting them or imposing blocks in the event of violations. With the above decision of the Senate, these are only applied in the specific case.
The decision on provisional enforceability arises from Section 709 Sentence 1 and Sentence 2 of the Code of Civil Procedure.
