BGH - Az. VI ZR 426/24

BGH - Az. VI ZR 426/24

Court:	BGH (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 82(1) GDPR Article 85 GDPR § 23(1) MStV
Decided:	29.07.2025
Published:
Parties:
National Case Number/Name:	Az. VI ZR 426/24
European Case Law Identifier:
Appeal from:	OLG Dresden (Germany) 4 U 3/24
Appeal to:	Not appealed
Original Language(s):	German
Original Source:	Rewis (in German)
Initial Contributor:	Le

The Federal Court of Justice held that a political party could invoke the privilege of journalistic purposes under Article 85 GDPR when using the name of a different politician in an announcement for a demonstration. Therefore, no legal basis is required and the politician was not entitled to any compensation.

English Summary

Facts

The data subject is a member of the parliament for the party Die Linke. The controller is a state party described as "right-wing extremist small party".

The data subject announced a demonstration against governmental actions at the town’s square and a few days later the controller published a post on Telegram and printed flyers announcing a demonstration at the same place and time and for the same cause as the other demonstration. In their announcement they called for a united demonstration and listed the data subject’s name amongst the names of far-right party leaders.

The data subject filed a case before the Regional Court (District Court of Leipzig - LG Leipzig) arguing that his good reputation and credibility as politician had been significantly impaired by the fact that the announcement has wrongly given the impression that he was cooperating with a "right-wing party". He requested an injunctive relief and claimed immaterial damages for the violation of his personality rights and privacy rights, under Article 82 GDPR. The Regional Court awarded him €10,000 in immaterial damages and ordered the controller to delete the post.

Following the controller’s appeal before the Court of Appeal (Higher Regional Court of Dresden - OLG Dresden), the court overturned the Regional Court's judgment and dismissed the action. It held that the violation of the right to personality did not reach the degree of relevance required for the granting of a monetary compensation and a claim from Article 82 GDPR was also out of the question because this article is not relevant in the area of political debate.

The data subject appealed this judgement before the Federal Court of Justice (BGF) pursuing his claim for monetary compensation.

Holding

The Federal Court of Justice held that the data subject was not entitled monetary compensation against the controller from any legal point of view.

First, it held that the controller did not violate the data subject’s right to personality, under national law. The statement that the data subject made a pact with forces of the far right, on which the data subject based his claim, couldn't be clearly inferred from the said post by an unbiased and reasonable audience.

Second, the court found that the controller processed the personal data of the data subject for journalistic purposes, pursuant to Article 85 GDPR and the State Media Treaty (MStV), which constitutes an exception from the GDPR principles and data subject rights. According to EU case law (C-345/17 and C-73/07), personal data is processed for journalistic purposes if it has the purpose of disseminating information, opinions or ideas with whatever means of transmission in public and applies not only to media companies, but to anyone who is active in journalism.

Consequently, the Court rejected the appeal, holding that in this case the processing of personal data did not fall under Article 6 GDPR or Article 7 GDPR, therefore a claim for damages under Article 82 GDPR could not be considered.

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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.

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VI ZR 426/24

Federal Court of Justice, Judgment of July 29, 2025, Case No. VI ZR 426/24

6th Civil Senate | REWIS RS 2025, 7563

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Subject Matter

Mentioning the name of a member of the Bundestag in a call for a demonstration
Principle

1. A lawsuit seeking an injunction against a statement must, in principle, be upheld if the statement has an ambiguous meaning and, in one of the not unlikely interpretations, violates the general personality rights of the person affected by it. In contrast, when examining civil law sanctions – which also includes the claim for monetary compensation – the legal assessment must be based on the interpretation that is more favorable to the party being sued and causes less harm to the person affected.

2. A claim arising from a violation of EU data protection provisions under Article 82 (1) GDPR does not exclude claims for damages due to a violation of national provisions; even in the case of the unrestricted application of the General Data Protection Regulation, a claim for compensation for material or immaterial damage may, if appropriate, also arise from Section 823 (1) of the German Civil Code (BGB) in conjunction with Article 1 (1) and Article 2 (1) of the German Basic Law (GG).

3. If a data processing operation falls under the media privilege (here: Art. 85 (2) GDPR in conjunction with Section 23 (1) Sentence 4 MStV), it does not have to be measured against Art. 6 and Art. 7 GDPR, with the consequence that a claim for damages based on a violation of these provisions under Art. 82 GDPR is not applicable.

4. The term "press company" within the meaning of Section 23 (1) Sentence 4 MStV is to be interpreted in accordance with constitutional and European law to include all providers of telemedia for journalistic purposes. This may also include political parties, even if they do not have an organizationally independent department responsible for publications (demarcation from BVerwG, decision of October 29, 2015 - 1 B 32/15, K&R 2016, 66).

5. The phrase "for journalistic purposes" within the meaning of Section 23 (1) Sentence 4 of the Interstate Broadcasting Agreement (MStV) is to be interpreted broadly and in line with the terminology of EU law in Article 85 of the GDPR.

6. On the claim for payment of a fictitious license fee due to unauthorized use of a person's name for commercial purposes.
Operative part

The plaintiff's appeal against the judgment of the 4th Civil Senate of the Dresden Higher Regional Court of April 23, 2024, is dismissed.

The plaintiff shall bear the costs of the appeal proceedings.

As a matter of law
Facts
1

The plaintiff is suing the defendant for monetary compensation for a violation of his personal rights. Alternatively, he is seeking payment of a fictitious license fee due to unauthorized use of his name for commercial purposes.

2

The plaintiff is a Member of the Bundestag for the Left Party in the Leipzig-South constituency. The defendant is a state party; It is described by the Saxon State Office for the Protection of the Constitution as a "small right-wing extremist party."

3

The plaintiff had registered a demonstration on Leipzig's Augustusplatz in front of the opera house for September 5, 2022, at 7:00 p.m. under the title "Prices down - Energy and food must be affordable." Following on from this, the defendant also registered a demonstration for the same day at the same time on the same square in front of the Gewandhaus under the title "Free Saxons support the Monday protest by S.[...] P.[...name of plaintiff] and The Left - together against those at the top." On August 31, 2022, at 5:48 p.m., the defendant published a post on its own Telegram channel, "Free Saxons," entitled "MARCH SEPARATELY, STRIKE TOGETHER!" The article contains the following content, with specific individuals being assigned their full names to the magazines and parties listed under the heading, as well as to the attribute "non-party." The plaintiff is listed there for the Left Party (Die Linke) – second only to the long-time leading politician G.[...] G.[...].

Figure

4

The plaintiff learned of the article on September 1, 2022. The following day, he obtained an injunction from the Regional Court, whereupon the defendant deleted the article on September 3, 2022. The plaintiff subsequently unsuccessfully demanded that the defendant submit a final statement and pay monetary compensation in the amount of €10,000.

5

The plaintiff claims that his reputation and credibility as a politician have been significantly damaged by the wrongful impression that he was colluding with forces on the far right. By publishing the complaint, the defendant allegedly falsely claimed that the plaintiff was cooperating with a "right-wing party," which undermines his political credibility. The violation was unlawful and exceeded the threshold of significance required for the award of monetary compensation. The plaintiff also based his claim in this regard on Art. 82 GDPR.

6

The Regional Court ordered the defendant to pay monetary compensation in the amount of €10,000 for a serious violation of his personality rights. Upon the defendant's appeal, the Higher Regional Court overturned the Regional Court's judgment and dismissed the action. The Court of Appeal dismissed the plaintiff's claim, which was expanded by the cross-appeal, in which the plaintiff sought further compensation in the amount of at least €5,000. With the appeal granted by the Court of Appeal, the plaintiff continues to pursue his claim for monetary compensation.
Reasons for the Decision

A.

7

In the opinion of the Court of Appeal (AfP 2024, 345), the plaintiff cannot demand monetary compensation from the defendant pursuant to Section 823 (1) of the German Civil Code (BGB) in conjunction with Article 1 (1) and Article 2 (1) of the Basic Law (GG). The defendant's advertising flyer does indeed violate the plaintiff's general personality rights. The factual statement contained therein impairs the plaintiff's claim to social recognition because it presents him in a negative light among the general public and the potential electorate of the Left Party. This impairment is also unlawful. The flyer makes the untrue factual allegation that the plaintiff is "conspiring" with the defendant. However, no open allegation of cooperation between the plaintiff and the defendant in the run-up to the demonstrations by both parties is made. However, a collaboration in this regard is contained in the flyer as a covert statement. The average user would not necessarily conclude that the plaintiff actively approached the defendant and agreed to an unofficial cooperation with it. However, they would inevitably conclude that the defendant had decided to seek solidarity with the plaintiff as a good-natured comrade, which the plaintiff at least accepted and therefore took to the streets with the defendant as part of a joint action. The plaintiff thus appears to be a politician who, while abandoning fundamental political principles, would unhesitatingly enter into pacts with even a small party from the far-right spectrum if it meant focusing attention on his own political goals.

8

The impression created by the defendant that the plaintiff was at least close enough to the defendant to appear with it at a demonstration driven by a common will, caused considerable damage to his reputation as a member of parliament for the Left Party. Even a mere approach to the defendant's positions or individuals is not communicable not only to members of the Left Party, but to the vast majority of the population in Germany. Even the mere appearance of such an approach is therefore likely to significantly damage the plaintiff's public reputation and trust in his integrity as a politician. The advertising effect in favor of the plaintiff claimed by the defendant is clearly implausible, because the defendant, monitored by the Federal Office for the Protection of the Constitution, stands so far outside the democratic spectrum that any politician must fear being excluded from democratic discourse simply by contacting its representatives.

9

However, this violation of personal rights does not reach the level of significance required for the award of monetary compensation. The plaintiff is not portrayed in the flyer as someone who actively sought to join forces with the right-wing extremist group, but merely as someone who accepted this support in the interest of a common cause. According to the plaintiff's own statements, 65,100 people actually read the flyer. It was also only visible for about two days, which reduces the risk of unmistakable dissemination through continuous sharing and linking of the content in question. Furthermore, the defendant's Telegram account is presumably primarily viewed by supporters of the Free Saxons, which is why there is no serious reason to fear damage to the plaintiff's image among his potential electorate and the political public in Germany. In the absence of persistent persecution, the principles regarding the exploitation of others' personal rights to increase circulation do not lead to a different result.

10

The asserted claim also does not arise from the perspective of the license analogy due to image transfer for advertising purposes. The necessary interference with the property-related assignment of personal rights is lacking. An impermissible usurpation of a name must also be denied. Mere mention of a name occurred.

11

Finally, the asserted claim does not arise from Art. 82 GDPR. The scope of protection of this provision is not affected. According to its protective purpose, Art. 82 GDPR only covers those situations in which the manner in which information was obtained is challenged and the allegation of non-transparent data processing is raised, i.e., the right to informational self-determination is at issue. If, however, the impairment is linked to the outcome of the communication process, namely the publication and dissemination of the personal data, then only the scope of protection of the general right of personality is affected, and the application of Art. 82 GDPR is not applicable. Art. 82 GDPR is therefore not relevant in the area of political debate.

B.

12

The appeal is unsuccessful.

13

I. The defendant was not represented at the hearing before the Senate. Nevertheless, the plaintiff's appeal on points of law must be decided not by default judgment, but by final judgment (a non-genuine default judgment), since it proves to be unfounded on the basis of the facts established by the appellate court (see Senate judgment of October 11, 2022 - VI ZR 35/22, ZIP 2022, 2499, para. 5; Federal Court of Justice, judgments of February 10, 1993 - XII ZR 239/91, NJW 1993, 1788, juris, para. 9; of July 14, 1967 - V ZR 112/64, NJW 1967, 2162, juris, paras. 7, 9).

14

II. The action is admissible. In particular, it is sufficiently specific (Section 253 (2) No. 2 of the Code of Civil Procedure).

15

1. Pursuant to Section 253 (2) No. 2 of the Code of Civil Procedure (ZPO), the statement of claim must contain, in addition to a specific motion, a specific statement of the subject matter and the grounds of the asserted claim. This defines the subject matter of the dispute, establishes the limits of lis pendens and res judicata, and determines the subject matter and scope of the court's decision-making authority. A proper filing of a claim requires individualization of the subject matter of the dispute. The plaintiff must make the necessary determination of the subject matter of the dispute and may not leave it to the court's discretion. The lack of specificity of the motion and the grounds of the claim must also be considered ex officio in appeal proceedings. However, a clarification that is already required in the action can still be sought by the party during the course of the proceedings, even in the appeal (see Senate judgments of January 21, 2025 - VI ZR 141/24, VersR 2025, 758 para. 7; of January 29, 2019 - VI ZR 481/17, VersR 2019, 499 paras. 8, 11).

16

2. The claim asserted by the plaintiff for payment of monetary compensation, on the one hand, and the claim for payment of a fictitious license fee due to interference with the valuable components of the general right of personality, on the other hand, are different subject matters in dispute. This follows from the fact that the first claim seeks compensation for non-material damage, while the second seeks compensation for material damage (cf. Federal Court of Justice, judgment of May 27, 1993 - III ZR 59/92, BGHZ 122, 363 [not reprinted there], juris para. 8; Senate decision of April 25, 1989 - VI ZB 13/89, MDR 1989, 903, juris para. 7; Senate judgment of May 22, 1984 - VI ZR 228/82, VersR 1984, 782, juris paras. 17 et seq.). The claims are also essentially different. Thus, a distinction must be made between the ideal components of the personality right, which belong to the constitutionally protected core of personality development, and the asset-value components of the personality right, which are only protected under ordinary law (see only BVerfG, GRUR 2006, 1049, 1050 et seq., juris para. 24 et seq. - Blue Angel; BGH, judgments of 26 October 2006 - I ZR 182/04, BGHZ 169, 340 para. 21 - Resignation of the Finance Minister; of 5 June 2008 - I ZR 96/07, AfP 2008, 596 para. 14 - Crumpled Cigarette Packet; cf. for the derivation of the different claims BGH, judgment of 1 December 1999 - I ZR 49/97, BGHZ 143, 214, juris paras. 48-51 - Marlene Dietrich; and on postmortem personality rights, see the Senate judgment of December 6, 2005 - VI ZR 265/04, BGHZ 165, 203, 206 et seq., juris paras. 11-17.

17

3. While the plaintiff based his claim in the lower courts on an undifferentiated mixture of both procedural claims without specifying an order of review, he admissibly switched from the alternative to the possible joinder of claims in the appeal court (cf. Senate judgment of January 29, 2019 - VI ZR 481/17, VersR 2019, 499 para. 11). He clarified at the appeal hearing that he based his claim for payment primarily on a claim for compensation for non-pecuniary damages and only alternatively on a claim for payment of a fictitious license fee.

18

III. The claim is unfounded. The plaintiff is not entitled to claim damages against the defendant under any legal consideration.

19

1. The appeal court correctly concluded that the plaintiff is not entitled to payment of monetary compensation from the defendant under Section 823 (1) of the German Civil Code (BGB) in conjunction with Article 1 (1) and Article 2 (1) of the Basic Law (GG). Contrary to the opinion of the appeal court, however, the violation of the non-material elements of the general right of personality required for the award of monetary compensation is already lacking. The statement that the plaintiff is colluding with forces of the extreme right, on which the plaintiff bases his claim, cannot be clearly inferred from the contested article. Rather, the article has an ambiguous meaning; In a not far-fetched interpretation, it does not violate the non-material elements of the plaintiff's general personality rights, which is why the imposition of civil law sanctions must be avoided.

20

a) The decisive factor in assessing a violation of the general personality rights is the accurate assessment of the content of the challenged statement, in particular the clarification of the respect in which, according to its objective meaning, it impairs the personality rights of the person affected (cf. Senate judgment of August 1, 2023 - VI ZR 308/21, AfP 2023, 409 para. 8; BVerfGE 114, 339, 348 et seq., juris para. 31; BVerfG, AfP 2023, 142 para. 15; NJW 2025, 1642 paras. 16 et seq.). What is decisive for the interpretation is neither the subjective intention of the person making the statement nor the subjective understanding of those affected by the statement, but the meaning it has according to the understanding of an unbiased and intelligent average audience. Starting from the wording – which, however, cannot conclusively determine the meaning – and general usage, the interpretation must take into account the linguistic context in which the disputed statement is made and the accompanying circumstances in which it was made, insofar as these are recognizable to the audience. To grasp the full meaning, the statement in question must always be assessed in the overall context in which it was made. It must not be removed from the relevant context and considered in isolation. Far-fetched interpretations must be ruled out (see Senate judgments of November 19, 2024 - VI ZR 87/24, K&R 2025, 177 para. 41; of August 1, 2023 - VI ZR 308/21, AfP 2023, 409 para. 8; BVerfGE 114, 339, 348 et seq., juris para. 31; each with further references).

21

If the meaning is clear based on this standard, it shall be used as the basis for further examination. However, if it becomes apparent that an unbiased and intelligent public perceives the statement as ambiguous, or if significant portions of the public understand the content differently, further examination must assume that the content is ambiguous (cf. Senate judgment of June 4, 2019 - VI ZR 440/18, AfP 2019, 517 para. 12; BVerfGE 114, 339, 348 et seq., juris para. 31; BVerfGK 18, 33, 39 et seq., juris para. 21 et seq.; BVerfG, NJW 2025, 1642 para. 19). A distinction must be made according to the nature of the asserted claim. Thus, an action for an injunction against a statement must in principle be granted if the statement has an ambiguous meaning and, in one of the not unreasonable interpretations, violates the general personality rights of the person affected by it (see Senate judgments of 4 June 2019 - VI ZR 440/18, AfP 2019, 517 para. 19; of 10 December 2024 - VI ZR 230/23, AfP 2025, 37 para. 17; BVerfGE 114, 339, 349 et seq., juris para. 33 et seq.; BVerfGK 18, 33, 39, juris para. 21). In contrast, when examining civil law sanctions – which also includes the claim for monetary compensation – the legal assessment must be based on the interpretation that is more favorable to the party being sued and less detrimental to the person affected (see Senate judgment of November 25, 2003 – VI ZR 226/02, VersR 2004, 343, juris para. 26; BVerfGE 114, 339, 349, juris para. 33). If the wording or circumstances of the statement allow for an interpretation that does not violate personal rights, a conviction for damages, retraction, or correction violates Article 5.1, first sentence, of the Basic Law (see BVerfGE 114, 339, 349, juris para. 33; BVerfG NJW 2025, 1642 para. 19).

22

The aforementioned requirements for determining the meaning of statements are subject to full review by the appeal court (see Senate judgments of November 19, 2024 - VI ZR 87/24, K&R 2025, 177 para. 41; of August 1, 2023 - VI ZR 308/21, AfP 2023, 409 para. 8).

23

b) Taking these principles into account, the defendant's challenged contribution has an ambiguous content. Measured by the standard of the unbiased and reasonable average recipient, it allows for several alternative interpretations, each of which proves to be not far-fetched. Thus, some readers will understand the article to mean that it announces a unified demonstration supported by the collective will of all named individuals, and that these individuals, including the plaintiff, have coordinated or collaborated in this regard. This section of readers will derive its understanding from the list of six individuals immediately below the headline, which resembles a list of speakers, as well as the final link and the use of the word "together" in the first sentence of the text, according to which the various political camps of the opposition will come together to take to the streets together to protest against the government's energy and sanctions policies.

24

In contrast, another section of readers will not perceive any cooperation or collusion between the plaintiff and the named representatives of the defendant in the contested article. Based on the eye-catching headline "MARCH SEPARATELY, STRIKE TOGETHER!" and the plural text in the white-bordered box "ALL RALLED EVENT ARE APPROVED," this section of readers will expect the following text to describe separate, independently organized protest marches. The list of various individuals, each associated with magazines or a party on the extreme right, or with the Left Party, located between the headline and the box, will be understood by this section of readers as a concretization of the "separate marchers." This understanding will be confirmed by the fact that they consider any collaboration between the long-time leading politician of the Left Party, G.[...] G.[...], named there, and the plaintiff with the extreme right to be extremely unlikely. Based on this, this section of readers will understand the word "together" in the following text not in the sense of "communal," but rather in accordance with its first-place meaning in the Duden dictionary, "of several people equally belonging to one another," and will relate it to the goal pursued by the protest. They will interpret the passage stating that the various political camps of the opposition will meet next Monday on Augustusplatz in Leipzig to take to the streets together against the government's energy and sanctions policies, accordingly, to mean that the "separate marchers" have made the same socially relevant issue the subject of their intended demonstration and, to that extent, have a common protest goal, but have neither cooperated nor coordinated in this regard. In this understanding, some readers will ultimately see themselves confirmed by the fact that the defendant alone, and not the Left Party, is identified as the author of the post; however, in a concerted action, it would have been expected that the call for the demonstration would have been made jointly.

25

The unbiased and intelligent average reader sees the goal of the protest events, which the "marching separately" unanimously pursued and described in the article as "taking to the streets against the government's energy and sanctions policies," as a reduction in high energy costs. They conclude this from the slogan "Better to demonstrate than to freeze at home!" printed in capital letters above the body text and from the fact, known to them, that the sanctions imposed in response to the war in Ukraine have led to significant price increases on the energy markets.

26

c) In the latter interpretation, the contested article does not violate the plaintiff's general right of personality.

27

aa) The announcement that the plaintiff, as part of an independently organized protest event, will advocate for the same socially relevant cause – a reduction in energy prices – as politicians from the extreme right spectrum at a parallel event taking place at the same time and in close proximity to the protest event, does not infringe upon the scope of protection of the plaintiff's general personality rights. Such a statement neither impairs the plaintiff's (professional) honor nor his reputation as a member of parliament. It is not likely to have a detrimental effect on his reputation, in particular his public image or his political credibility.

28

bb) However, any infringement of the plaintiff's general personality rights would also not be unlawful. The balancing required to determine illegality between the plaintiff's interest in the protection of his personality rights, guaranteed by Article 2 (1), Article 1 (1) of the Basic Law, and Article 8 (1) of the European Convention on Human Rights, with the defendant's right to freedom of expression enshrined in Article 5 (1) of the Basic Law and Article 10 (1) of the European Convention on Human Rights, and the public's interest in information pursued by the defendant (see, for example, the Senate judgment of December 17, 2024 - VI ZR 311/23, BGHZ 242, 283, paras. 21 et seq. with further references), would be in favor of the defendant. The communication, with the content just described, contains true factual allegations, which the plaintiff must accept in considering all the circumstances of the case. The Senate can conduct this balancing itself because no further findings of fact are required for this purpose.

29

(1) The decisive factor in the balancing of interests is the qualification of the statement in question as a factual assertion or a value judgment. In the case of factual assertions that are detrimental to reputation, the balancing of the conflicting interests is determined essentially by the truthfulness of the allegations. True factual assertions must generally be accepted, even if they are detrimental to the person concerned, whereas false ones are not. However, even true factual assertions are not admissible without restriction. Rather, they can unlawfully interfere with the personality rights of the person concerned if they threaten to cause personal harm that is disproportionate to the interest in disseminating the truth (cf. Senate judgment of October 17, 2023 - VI ZR 192/22, AfP 2024, 139, para. 25).

30

(2) The defendant's statements, in the interpretation relevant here, are to be classified as factual assertions. This is because they are subject to review by means of evidence (cf. Senate judgment of December 10, 2024 - VI ZR 230/23, AfP 2025, 37 para. 24 with further references).

31

This also applies if it is stated that the plaintiff will advocate for a reduction in energy prices at a future date as part of a protest event. Admittedly, the defendant merely asserts that the plaintiff intended to do so. Statements about internal facts, such as the motives or intentions of third parties, are more likely to be value judgments than assertions of fact that are subject to proof. The assertion of internal facts is regularly based on conclusions drawn from the conduct of the person concerned, which are shaped by elements of the opinion and belief of the person making the statement (see Senate judgment of 10 December 2024 - VI ZR 230/23, AfP 2025, 37 para. 26; ECtHR, AfP 2016, 24 para. 63 - Axel Springer AG v. Germany (no. 2); Federal Constitutional Court, AfP 2023, 142 para. 24). A different assessment is required, however, if the intention or motives were made public, or if the subject of the statement is past behavior of a third party, and clarification of the motives appears possible based on external circumstantial evidence (cf. Senate judgment of April 22, 2008 - VI ZR 83/07, BGHZ 176, 175 para. 19; Federal Constitutional Court, AfP 2023, 142 para. 24; NJW 2007, 2686, 2688, juris para. 28).

32

This is the case here. According to the findings of the Court of Appeal, the plaintiff made his corresponding intention public by registering a demonstration entitled "Prices Down - Energy and Food Must Be Affordable" on Leipzig's Augustusplatz for the day in question.

33

(3) The facts alleged in the article are true. As already explained, the plaintiff had registered a demonstration on Leipzig's Augustusplatz for September 5, 2022, at 7:00 p.m. under the title "Prices down - Energy and food must be affordable." According to the findings of the Court of Appeal, the defendant had registered a parallel event for the same day, at the same time, on the same square, during which it also intended to advocate for a reduction in energy prices. Its demonstration was titled: "Free Saxons support the Monday protest by S.[...] P.[...name of plaintiff] and The Left - together against those at the top."

34

(4) The defendant's true statements, in the interpretation relevant here, are also not capable of causing personal harm that is disproportionate to the interest in spreading the truth. In particular, they are not likely to result in a particular stigmatization of the plaintiff, with the consequence that they could become a starting point for social exclusion and isolation.

35

2. The Court of Appeal also rightly concluded that the asserted claim for compensation for non-material damage does not arise from Article 82 (1) GDPR.

36

a) However, a claim under Article 82 (1) GDPR cannot be denied on the grounds that the scope of application of this provision is not open because the legal framework is only determined by the General Data Protection Regulation if the method of obtaining the information is challenged and the allegation of non-transparent data processing is raised. However, if the alleged impairment is linked to the outcome of a public communication process, as in the present case, only the material scope of application of the right of expression is open; Article 82 GDPR is not relevant in the area of political debate. Although a claim arising from a breach of EU data protection provisions under Article 82(1) GDPR does not exclude claims for damages due to a breach of national provisions, a claim for compensation for material or immaterial damage may therefore also arise in the event of the unrestricted application of the General Data Protection Regulation under the aspect of a violation of the general right of personality, if necessary, from Section 823 (1) of the German Civil Code in conjunction with Article 1 (1) and Article 2 (1) of the Basic Law (GG) (cf. Recital 146, sentence 4 GDPR; ECJ, judgments of 4 May 2023 - C-300/21, NJW 2023, 1930, marginal no. 41 - Österreichische Post AG; of 4 October 2024 - C-21/23, K&R 2024, 795, marginal no. 60; Opinion of Advocate General Szpunar of 6 February 2025 - C-492/23, juris marginal nos. 118, 164, 185; Bergt in Kühling/Buchner, GDPR BDSG, 4th ed., Art. 82 paras. 67, 68 with further references; BeckOK DatenschutzR/Quaas, 52nd ed. [as of May 1, 2025], Art. 82 GDPR para. 8; Boehm in Simitis/Hornung/Spiecker gen. Döhmann, Datenschutzrecht, 2nd ed., Art. 82 GDPR para. 36). However, due to the primacy of the General Data Protection Regulation, a claim under Art. 82 (1) GDPR cannot be denied solely because the processing of personal data is the result of a public communication process. This is because the substantive requirements for data processing pursuant to Art. 6 and Art. 7 GDPR may not be excluded or disregarded by national law outside the area exceptions and opening clauses provided for by the General Data Protection Regulation itself. What is decisive is whether the data processing operation in question falls under the media privilege regulated in Art. 85 GDPR. If this is the case, the data processing operation does not have to be measured against Art. 6 and Art. 7 GDPR, with the consequence that a claim for damages based on the violation of these provisions under Art. 82 GDPR does not come into consideration (cf. Senate judgments of 22 February 2022 - VI ZR 1175/20, K&R 2022, 433 para. 18; of 7 July 2020 - VI ZR 250/19, VersR 2021, 189 para. 10; - VI ZR 246/19, K&R 2020, 830 para. 11; decisions of 15 May 2025 - VI ZR 5/24, juris; of 16 February 2021 - VI ZA 6/20, juris).

37

b) This is the situation in the case in dispute. The dissemination of the post mentioning the plaintiff's name on the defendant's Telegram channel falls within the scope of media privilege (Article 85 (2) GDPR in conjunction with Section 23 (1) Sentence 4 of the Interstate Broadcasting Agreement (MStV).

38

aa) Pursuant to Article 85 (2) GDPR, Member States shall provide for derogations or exceptions, inter alia, from the provisions concerning the lawfulness of data processing in Articles 6 and 7 GDPR for processing carried out for journalistic purposes or for scientific, artistic, or literary purposes, if this is necessary to reconcile the right to the protection of personal data with freedom of expression and freedom of information. The national legislature – the states – has made use of this opening clause for the area of telemedia in Section 23 (1) Sentence 4 of the MStV.

39

bb) The article disseminated by the defendant falls within the scope of this provision. It protects the data processing of all providers of telemedia for journalistic purposes, regardless of their entrepreneurial nature as a commercial enterprise or organizational independence (1). The defendant processed the personal data of third parties contained in its article, including the plaintiff's name, as a provider of a telemedia service for journalistic purposes (2).

40

(1) According to Section 23 (1) Sentence 4 of the Interstate Broadcasting Agreement (MStV), in addition to Chapters I, VIII, X, and XI of the General Data Protection Regulation, only Article 5 (1) (f) in conjunction with (2), Article 24, and Article 32 of the GDPR apply to data processing for journalistic purposes. The provision in sentence 4 is introduced with the words "Furthermore," which is why it must be read in the context of the entire paragraph. Section 23 (1) Sentence 1 of the Interstate Broadcasting Agreement (MStV) names (only) the state broadcasting corporations forming part of the ARD, ZDF, Deutschlandradio, private broadcasters, or companies and auxiliary press companies as providers of telemedia. However, the term "press company" is to be interpreted in accordance with constitutional and European law to include all providers of telemedia for journalistic purposes (see also Federal Constitutional Court, AfP 2019, 514; Federal Constitutional Court, Decision of July 10, 2019 - 1 BvR 1197/19, juris paras. 3 et seq.).

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(a) Section 23 (1) MStV corresponds unchanged to the predecessor provision of Section 57 (1) RStV, which was incorporated into the Interstate Broadcasting Agreement by the 21st Amendment to the Interstate Broadcasting Agreement with effect from May 25, 2018. The explanatory memorandum to the 21st Interstate Treaty on Broadcasting states that Section 57 of the RStV (old version), which previously only contained a media privilege for companies and auxiliary companies of the press as providers of telemedia, is being expanded to include a comprehensive media privilege for the telemedia of broadcasting and the press (Broadcasting Commission of the States, Explanatory Memorandum to the 21st Interstate Treaty on the Amendment of Interstate Treaties on Broadcasting Law [21st Interstate Treaty on Broadcasting Amendment], https://rundfunkkommission.rlp.de/fileadmin/rundfunkkommission/Dokumente/Medienpolitik/21_RAEStV_Begruendung.pdf; cited below according to LT-Drs. NRW 17/1565 p. 75 ff., here p. 82). With this regulation, the national legislature explicitly intended to exploit the discretion granted by Article 85 (2) GDPR (LT-Drs. NRW 17/1565, p. 82 in conjunction with pages 75 (3) and 77 (3)). While the previous law required processing "exclusively for one's own journalistic-editorial" purposes for the purposes of data protection, any processing "for journalistic purposes" is now sufficient. The new regulation follows the wording of Article 85 GDPR and Recital 153, according to which the term "journalism" is to be interpreted broadly. The requirement "exclusively for one's own" also no longer applies in view of the wording of the General Data Protection Regulation (LT-Drs. NRW 17/1565, p. 82 in conjunction with page 77 (3)). The exceptions to the General Data Protection Regulation are necessary and justified due to the outstanding importance of free media, not subject to state control, for the formation of public opinion and the diversity of opinion in a democratic system, and their indispensable supervisory function ("guardianship") (LT-Drs. NRW 17/1565, p. 82 in conjunction with section 74 para. 6). Even in the age of digitalization, media freedom is constitutive of the free democratic basic order (LT-Drs. NRW 17/1565, p. 82 in conjunction with section 76 para. 4). Journalistic work within the framework of telemedia services is also subject to the media freedoms enshrined in Article 5 para. 1 sentence 2 of the Basic Law (LT-Drs. NRW 17/1565, p. 82 para. 5).

42

In the explanatory memorandum to the 21st Interstate Treaty on Broadcasting, the national legislature also adopted the broad interpretation of the term "journalism" as it is understood autonomously under EU law within the meaning of the General Data Protection Regulation (see ECJ, judgments of 14 February 2019 - C-345/17, AfP 2019, 222 paras. 51 et seq. - Buivids; [Grand Chamber] of 16 December 2008 - C-73/07, K&R 2009, 102 para. 56 - Satamedia). The explicit reference to the wording of Article 85 GDPR and the recitals of the Regulation necessitate an interpretation of Section 23 MStV based on EU law terminology. According to the Court's case law on the predecessor provision in Article 9 of the Data Protection Directive, the exemptions and exceptions provided for apply not only to media companies, but to anyone engaged in journalistic activities (ECJ, judgments of 14 February 2019 - C-345/17, AfP 2019, 222 para. 52 - Buivids; [Grand Chamber] of 16 December 2008 - C-73/07, K&R 2009, 102 para. 58 - Satamedia; Opinion of Advocate General Kokott of 8 May 2008 - C-73/07, juris para. 65 - Satamedia; Opinion of Advocate General Sharpston of 27 September 2018 - C-345/17, juris paras. 53 et seq. - Buivids).

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(b) A different assessment is not warranted by the reference on page 82 of the explanatory memorandum to the 21st Interstate Treaty on Broadcasting, according to which the new regulation does not intend to change the definition of "press organization." To the extent that reference is made to the Federal Administrative Court's decision of October 29, 2015 - 1 B 32/15 (K&R 2016, 66) and paragraph 5 therein with further references to describe the current legal situation, this does not restrict the scope of the media privilege. Rather, in this decision, the Federal Administrative Court emphasizes the necessity of data protection privileges for media professionals. It expressly refers to the case law of the Senate, according to which the media privilege formerly stipulated in Section 57, Paragraph 1, Sentence 1 RStV is an expression of the freedom of the media enshrined in Article 5, Paragraph 1, Sentence 2 of the Basic Law, without the collection, processing and use of personal data, regardless of the consent of the person concerned, journalistic work would not be possible and the press would not be able to fulfil its tasks granted and guaranteed in Article 5, Paragraph 1, Sentence 2 of the Basic Law, Article 10, Paragraph 1, Sentence 2 of the European Convention on Human Rights, Article 11, Paragraph 1, Sentence 1 of the Charter of Fundamental Rights of the European Union (Senate judgments of 9 February 2010 - VI ZR 243/08, NJW 2010, 2432, marginal no. 26; of 23 June 2009 - VI ZR 196/08, BGHZ 181, 328, marginal no. 20; each with comprehensive Evidence; see also Federal Administrative Court, judgment of March 21, 2019 - 7 C 26/17, BVerwGE 165, 82 para. 28). Referring to paragraph 58 of the judgment of the Court of Justice of the European Union of December 16, 2008 (C-73/07, K&R 2009, 102 - Satamedia), it states that the concept of the press should be interpreted broadly and that, for example, independent journalists who are not integrated into editorial structures could also be considered press undertakings.

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To the extent that the Federal Administrative Court has further restricted the definition of a press company for associations, political parties, or other companies that produce publications for members, customers, or other purposes, to the effect that they may only claim media privilege if the department responsible for the publications is organizationally independent, these statements are, upon reasonable assessment, not covered by the reference to page 82 of the explanatory memorandum to the 21st Interstate Treaty on Broadcasting. The Federal Administrative Court bases this restriction on the consideration that data processing cannot be carried out "solely" or "exclusively" for the association's own journalistic purposes if there is no organizationally self-contained unit within the association that is isolated from other (operational) departments and autonomous in its editorial activities (BVerwG, K&R 2016, 66 para. 5). However, when adapting the Interstate Broadcasting Treaty to the General Data Protection Regulation, the legislature did not adhere to the requirement that data processing must be carried out "solely" or "exclusively" for the author's own journalistic and editorial purposes. Rather, under the new law, any processing "for journalistic purposes" is sufficient (see the explanatory memorandum to the 21st Interstate Broadcasting Treaty Amendment, LT-Drs. NRW 17/1565, p. 82 in conjunction with p. 77 para. 3). Following the adaptation of the Interstate Broadcasting Treaty to the General Data Protection Regulation, the restriction of the term “press” as it was made in the Federal Administrative Court’s decision on the legal situation under the Data Protection Directive is therefore (at least) obsolete with regard to the provision in Section 23 MStV (cf. Oster in Cole/Oster/Wagner, HK-MStV, 102nd edition, Section 23 MStV BW marginal no. 4; Soppe, ZUM 2019, 467, 475; Grages/Neben, K&R 2019, 300, 302; BeckOK InfoMedienR/Cornils, 48th ed. [as of 1 February 2021], Art. 85 GDPR marginal no. 75.2; BeckOK DatenschutzR/Lauber-Rönsberg, 52nd ed. [as of 1 November 2024], Art. 85 GDPR paras. 19 and 19.1; Rombey, ZD 2019, 301, 304; Michel, ZUM 2018, 836, 840; a.A. Härting, Internetrecht, 8th ed., para. A.81).

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(c) This also takes into account the fact that political parties have almost completely abandoned their traditional party press (on the term, see Reffken, Politische Beteiligungen an Medienunternehmen, 2007, p. 51 ff.) and are now relying on digital media for their contributions to opinion-forming (see, for example, BVerfG, AfP 2019, 514). However, if political parties shift their previous journalistic activities into the realm of new media due to advancing digitalization, which places different editorial demands on the organization than the publication of a (print) newspaper, these societal changes must also be taken into account in the interpretation. Because fundamentally comparable protection must be granted to new media. The media privilege is only technology-neutral in the required manner (cf. ECJ, judgment of February 14, 2019 - C-345/17, AfP 2019, 222 para. 57 - Buivids) if the interpretation also takes into account the development and use of new media (cf. Grages/Neben, K&R 2019, 300, 302; for the constitutional definition of the press, see also BeckOK InfoMedienR/Kühling, 48th Ed. [as of May 1, 2025], Art. 5 GG para. 88). There is no reason to fear that the media privilege will escalate into a general privilege of opinion, simply because the criterion of data processing for "journalistic purposes" is another prerequisite that must be met to open up the scope of application of the data protection privilege.

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(2) The defendant processed the personal data contained in its contribution, including the plaintiff's name, for journalistic purposes as a provider of a telemedia service.

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(a) The Telegram channel used by the defendant is a telemedia service. The term "telemedia" is defined by the Interstate Media Treaty in Section 2 (1) Sentence 3 of the Interstate Broadcasting Agreement (MStV) in accordance with the now-repealed Section 1 (1) Sentence 1 of the Telemedia Act (TMG) (see Explanatory Memorandum to the 9th Interstate Broadcasting Amendment Treaty, cited in LT-Drs. NRW 14/3130, p. 21; BeckOK InfoMedienR/Martini, 48th Ed. [as of February 1, 2021], Section 2 MStV, marginal no. 24; Möslein/Jetzen, ZBB 2024, 236, 238). According to this definition, telemedia are all electronic information and communication services, unless they are telecommunications services pursuant to Section 3 No. 61 of the Telecommunications Act (TKG) that consist entirely of the transmission of signals, or telecommunications-based services pursuant to Section 3 No. 63 of the TKG, or broadcasting pursuant to Section 2 Paragraph 1, Sentences 1 and 2 of the Interstate Broadcasting Agreement (MStV). This definition also includes social networks such as Instagram and the social media functions of Telegram in question here. The respective profiles or channels are, in turn, independent telemedia (cf. Federal Court of Justice, judgments of September 9, 2021 - I ZR 90/20, BGHZ 231, 38, marginal nos. 104 to 107 - Influencer I; of September 9, 2021 - I ZR 125/20, BGHZ 231, 87, marginal nos. 49 to 52 - Influencer II; of January 13, 2022 - I ZR 35/21, AfP 2022, 246, marginal no. 57 - Influencer III; Möslein/Jetzen, ZBB 2024, 236, 238; MüKoStGB/Altenhain, 4th ed. 2023, TMG § 1, marginal no. 26; each with further references).

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(b) The defendant is also classified as a provider of a telemedia service. The term "provider of telemedia" is not defined in the Interstate Media Treaty. According to the now-repealed Section 2, Sentence 1, No. 1 of the Telemedia Act (TMG) (see Explanatory Notes to the 9th Interstate Broadcasting Amendment Treaty, LT-Drs. NRW 14/3130, p. 21), a service provider is any natural or legal person who makes their own or third-party telemedia available for use or provides access to such use. The term "service provider" must be defined functionally. The provider must enable the dissemination or storage of information through their instructions or control over computers and communication channels and act externally as a service provider. In addition to the owner of a website, on internet portals, such as social media in particular, where users maintain subpages with communication-related independence, these users are also service providers (Federal Court of Justice, judgment of September 9, 2021 - I ZR 125/20, BGHZ 231, 87 para. 51 - Influencer II; Möslein/Jetzen, ZBB 2024, 236, 239). According to this standard, the defendant is a service provider because it operates an independent channel on Telegram.

49

(c) The defendant also processed the plaintiff's personal data on its Telegram channel for journalistic purposes within the meaning of Section 23 (1) Sentence 4 of the Interstate Broadcasting Agreement (MStV).

50

(aa) The phrase "for journalistic purposes" within the meaning of Section 23 (1) Sentence 4 of the MStV is to be interpreted broadly. As already explained, the reference in the explanatory memorandum to the 21st Interstate Treaty on Broadcasting to the wording of Article 85 GDPR requires an interpretation based on the terminology of EU law (see explanatory memorandum to the 21st Interstate Treaty on Broadcasting, LT-Drs. NRW 17/1565, p. 82 in conjunction with p. 77 para. 3). According to the case law of the Court of Justice, personal data is processed for journalistic purposes if it has the purpose of disseminating information, opinions, or ideas to the public, by whatever means of transmission (ECJ, judgments of 14 February 2019 - C-345/17, AfP 2019, 222 para. 53 - Buivids; [Grand Chamber] of 16 December 2008 - C-73/07, K&R 2009, 102 para. 61 - Satamedia). Thus, the term journalism encompasses not only "quality media" but also other forms of public reporting; it extends not only to traditional publication channels but can also be applied to new forms of publishing (Nettesheim, AfP 2019, 473, 475).

51

This does not mean, however, that the requirement of a minimum degree of independent processing of the provided information can be waived (see Senate judgments of October 12, 2021 - VI ZR 489/19, BGHZ 231, 263, paras. 18 et seq.; of February 15, 2022 - VI ZR 692/20, AfP 2022, 241, para. 12; as well as the unanimous opinion in the literature, see BeckOK InfoMedienR/Cornils, 48th Ed. [as of February 1, 2021], Art. 85 GDPR para. 74.1; Buchner/Tinnefeld in Kühling/Buchner, 4th Ed., Art. 85 GDPR paras. 24-26; Dix in Simitis/Hornung/Spiecker gen. Döhmann, Data Protection Law, 2nd ed., Art. 85 GDPR marginal no. 15; Weichert in Däubler/Wedde/Weichert/Sommer, EU-GDPR and BDSG, 3rd ed., Art. 85 GDPR marginal no. 31; Rohner in Knyrim, DatKomm, 61st edition, Art. 85 GDPR marginal no. 16; Austrian Data Protection Authority, decision of 4 September 2019, DSB-D124.482/0005-DSB/2019, p. 5; Zipfel, MMR 2020, 194; Michel, ZUM 2018, 836, 840; Soppe, ZUM 2019, 467, 470; Hennemann in Specht/Mantz DatenschutzR-HdB, 2019, § 19 marginal no. 34). This is because Art. 85 (2) GDPR does not contain a general privilege of free expression (see section 2. b) bb) (1) (c)). The Austrian Supreme Court also assumes that the privileged treatment of data processing for journalistic purposes requires a certain degree of journalistic processing and opinion-forming effect for the general public, because otherwise the protection of the personal data of data subjects would be too easily undermined (see Austrian Supreme Court, judgments of December 20, 2023 - 6 Ob 206/23x, para. 15 (para. 2.3); of February 2, 2022 - 6 Ob 129/21w, ZUM 2023, 219 para. 48).

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(bb) To the extent that the literature argues that (party) political statements or publications should be excluded from classification as statements for "journalistic purposes" from the outset because their opinion-forming effect is not the primary objective (see Heckmann/Scheurer in Heckmann/Paschke, jurisPK-Internetrecht, 8th ed., Chapter 9 [as of July 16, 2025], para. 1027; Heberlein, EuR 2021, 672, 684), this is not in line with the case law of the Court of Justice of the European Union. Classifying party political publications as statements for non-journalistic purposes would not do justice to the broadly interpreted term "journalism" within the meaning of Art. 85 (2) GDPR (see Section 2. b) bb) (1) (c) and 2. b) bb) (2) (c) (aa)). However, an exception for publications by political parties also raised considerable constitutional concerns. Political parties can also invoke media freedom (cf. BVerfGE 121, 30, 56 ff., juris para. 107 ff.; BVerfG, AfP 2019, 514 para. 15; Grabenwarter in Dürig/Scholz/Herzog, GG, 106th EL, Art. 5 para. 238; Wendt in von Münch/Kunig, GG, 7th ed., Art. 5 para. 22; Klafki in von Münch/Kunig, GG, 7th ed., Art. 21 para. 42; Sachs/Bethge, GG, 10th ed., Art. 5 para. 78; Sachs/Koch, GG, 10th ed., Art. 21 para. 54; Towigh/Ulrich in BK-GG, 205th Amendment, Art. 21, para. 274; Degenhart in BK-GG, 185th Amendment, Art. 5 paras. 1 and 2, para. 278; BeckOK GG/Schemmer, 61st Ed. [as of 15 March 2025], Art. 5, para. 40; Information by the Commission of Independent Experts on Questions of Party Financing, BT-Drs. 14/6710, pp. 43 et seq.). In particular, the parties are fundamentally free to decide whether and, if so, which media they wish to use to fulfill their mandate to participate in the political decision-making process (Article 21(1) first sentence GG), within the limits set by the constitution (cf. BVerfGE 121, 30, 57, juris para. 109; BVerfG, AfP 2019, 514 para. 15).

53

Rather, even with political party publications, the question of whether these publications were made for journalistic purposes must be based on the specific publication in the individual case.

54

(cc) Taking these principles into account, the contention in dispute via the defendant's Telegram channel was disseminated for journalistic purposes within the meaning of Section 23(1) fourth sentence MStV. With the post published on its Telegram channel on August 31, 2022, the defendant publicly promoted participation in the demonstration event it had registered for September 5, 2022, "Free Saxons support the Monday protest of S.[...] P.[...name of the plaintiff] and The Left - together against those at the top." The call, headlined "MARCH SEPARATELY, STRIKE TOGETHER!", drew attention to the planned demonstrations, in which "the most diverse political camps of the opposition would meet" to take to the streets together against the government's energy and sanctions policies. Despite existing "reservations against The Left Party (and especially against its leading politicians) from a "patriotic perspective," many people at the grassroots and among its supporters desired a "broad citizens' alliance against the government's madness."

55

Thus, the article – which was already sufficiently edited in terms of content – pursued the goal of influencing public opinion and contributing to the formation of political will. It served to inform about the demonstrations registered for September 5, 2022, and expressed criticism of the government's energy and sanctions policies and – "from a patriotic perspective" – of the Left Party. At the same time, it promoted the defendant's ability – at least from the defendant's perspective – to address the population's current problems in a solution-oriented and effective manner. The focus of the article on announcing assemblies intended to counter government policies reinforces the publication's public opinion-forming nature. Assemblies are particularly protected by Article 8 of the Basic Law (GG) as an expression of communal development based on communication; The special protection of freedom of assembly is based precisely on its importance for the process of public opinion formation in the free democratic order of the Basic Law (cf. BVerfGE 104, 92, 104, juris para. 40).

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3. The action is also not well-founded according to the alternative motion. The plaintiff is not entitled to payment of a fictitious license fee for the unauthorized use of his name for commercial purposes. As the appeal court correctly assumed, neither the requirements for a claim for damages under Section 823 (1) of the German Civil Code (BGB) nor those for a claim for unjust enrichment under Section 812 (1) Sentence 1, Case 2, and Section 818 (2) of the German Civil Code (BGB) are met.

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a) However, the use of a person's name for commercial purposes may constitute an infringement of the property-related components of the general personality right protected by Section 823 (1) of the German Civil Code (BGB), in its manifestation as the right to one's own name, and of the property-related allocation content of the general personality right protected by Section 812 (1) Sentence 1 Case 2 of the BGB, and may, under the further conditions of the aforementioned provisions, give rise to a claim for payment of the usual license fee. The decision as to whether and in what way one's own name should be made available for advertising purposes is an essential - property-related - component of personality rights (cf. Senate judgment of 20 March 2012 - VI ZR 123/11, AfP 2012, 260 marginal no. 23 et seq.; Federal Court of Justice, judgments of 16 May 2024 - I ZR 45/23, VersR 2024, 1545 marginal no. 15 - aircraft registration number; of 21 January 2021 - I ZR 120/19, GRUR 2021, 636 marginal no. 26 - clickbaiting and I ZR 207/19, AfP 2021, 150 marginal no. 74; of 1 December 1999 - I ZR 49/97, BGHZ 143, 214, 219, 232, juris paras. 49 et seq., 79 - Marlene Dietrich).

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b) As the Court of Appeal rightly assumed, the defendant did not use the plaintiff's name for commercial purposes.

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aa) The question of whether a name has been used for advertising, i.e., commercially, is assessed from the perspective of the average reader (cf. Senate judgment of March 14, 1995 - VI ZR 52/94, AfP 1995, 495, juris para. 12; Federal Court of Justice, judgment of July 28, 2022 - I ZR 171/21, GRUR 2022, 1694 para. 21 with further references - irritable bowel syndrome). It must be affirmed if the person sued as the infringer usurps the commercial exploitation rights of the named person or uses the commercial exploitation opportunities associated with the name for his or her business interests (cf. Senate judgment of 20 March 2012 - VI ZR 123/11, AfP 2012, 260 paras. 27 et seq.; Federal Court of Justice, judgment of 21 January 2021 - I ZR 120/19, GRUR 2021, 636 para. 27 with further references - Clickbaiting; of 1 December 1999 - I ZR 49/97, BGHZ 143, 214, 219, juris para. 51 - Marlene Dietrich). This is the case, for example, if the name is used in a manner that exploits the advertising and image value of the name holder by marketing the name holder as a preamble to the promotion of a product or by at least drawing the viewer's attention to the advertised product through the use of the name (cf. Federal Court of Justice, judgments of May 16, 2024 - I ZR 45/23, VersR 2024, 1545 para. 25 - aircraft registration number; of January 21, 2021 - I ZR 120/19, GRUR 2021, 636 para. 28 with further references - clickbaiting).

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bb) According to these principles, the contested post does not infringe the valuable elements of the plaintiff's general personality rights. From the perspective of an unbiased average reader, the defendant is not exploiting any commercial exploitation opportunities associated with the plaintiff's name for its business interests. The article is clearly not intended to transfer the plaintiff's image or advertising value to an advertised product or business service. Rather, it is intended to inform about the protest events taking place on September 5, 2022, against the energy policy of the then German federal government and the associated high energy prices, and to call for participation. Any image transfer intended by mentioning the plaintiff's name clearly serves only political, not commercial, purposes, which is immediately apparent to the unbiased reader.

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Contrary to the opinion of the appeal, a different assessment is not required because the contested article aimed to increase the defendant's own acceptance in society and ultimately to increase its own votes, and because, according to the principles of state party financing, the defendant can receive state funds for the total valid votes cast in European, federal, and state elections (Section 18 (1) and (3) of the Party Act). This circumstance is not sufficient to qualify the use of the plaintiff's name in the article as commercial. It can remain open whether, along with the appeal court, the suitability of mentioning the name of a politician from the Left Party to canvass for votes for a party described by the Saxon State Office for the Protection of the Constitution as a "small right-wing extremist party" can be ruled out. In any case, the defendant does not thereby interfere with the commercial exploitation right exclusively assigned to the plaintiff (cf. Federal Court of Justice, judgment of December 1, 1999 - I ZR 49/97, BGHZ 143, 214, 220, juris para. 51 - Marlene Dietrich: "asset-value exclusive right").

62

In this context, the appeal unsuccessfully asserts that the defendant, via its Telegram channel and thus also with the disputed post, advertises the products it sells at https://sachsenversand.shop with the intention of making a profit, as is clearly evident in the screenshot submitted by the defendant on the right-hand side. At the specified location, there is a business card-like description of the defendant's Telegram channel, which contains a wealth of information. Below the number of subscribers, photos, videos, files, and links posted, the domain name, a contact address, and a note advising that comments should be used politely are listed. The link https://sachsenversand.shop is one of many pieces of information located below the domain name, which is also designed as a link, and above the contact address. The unbiased average reader will not perceive this information as advertising for the defendant's merchandise offerings. They will certainly not establish any connection between any merchandise offerings and the people named in the post displayed to the left of the business card-like description. The assumption of attention-seeking advertising (cf. Federal Court of Justice, judgments of May 16, 2024 - I ZR 45/23, VersR 2024, 1545 para. 25 - aircraft registration number; of January 21, 2021 - I ZR 120/19, GRUR 2021, 636 para. 28 with further references - clickbaiting) is ruled out in this situation.

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IV. There is no need for a preliminary ruling to the Court of Justice of the European Union pursuant to Article 267 TFEU. In particular, the statements on Section 23 MStV concern the interpretation of national law (see Austrian Supreme Court, judgment of February 2, 2022 - 60 Ob 129/21w, ZUM 2023, 219 para. 50; Peifer, AfP 2020, 462 para. 21; and on Article 38 of the Bavarian Data Protection Act, Senate judgment of October 12, 2021 - VI ZR 489/19, BGHZ 231, 263 para. 73).

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V. The uniformity of case law (Article 95 (3) sentence 1 of the Basic Law) does not require the Joint Senate of the Supreme Federal Courts to refer the matter to the Joint Senate of the Federal Supreme Courts. The Federal Administrative Court has not yet issued a ruling on the definition of a press organization within the meaning of Section 23 MStV. The decision cited in the explanatory memorandum to the 21st Interstate Treaty on Broadcasting concerned the predecessor provision of Section 57 of the RStV (Federal Administrative Court, decision of October 29, 2015 - 1 B 32/15, K&R 2016, 66); however, this provision has undergone significant changes, as outlined above, in light of the subsequent applicability of the General Data Protection Regulation. The Federal Administrative Court's ruling of March 21, 2019 (7 C 26/17, BVerwGE 165, 82) also does not address the new regulation of the media privilege in Section 23 of the MStV.

Seiters

von Pentz

Allgayer

Böhm

Linder