OLG Köln - 15 U 45/23

OLG Köln - 15 U 45/23
Court:	OLG Köln (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 16 GDPR Article 17(3)(e) GDPR Article 26(1) Regulation (EU) No 1215/2012 § 249(1) BGB § 280(1) BGB § 3(2)(5) NetzDG a.F.
Decided:	25.01.2024
Published:
Parties:	Twitter
National Case Number/Name:	15 U 45/23
European Case Law Identifier:	ECLI:DE:OLGK:2024:0125.15U45.23.00
Appeal from:	LG Köln (Germany) 28 O 107/22
Appeal to:
Original Language(s):	German
Original Source:	NRWE (in German)
Initial Contributor:	n/a

The Higher Regional Court of Cologne rejected a data subjects's appeal against a social network operator regarding profile deletions, denial of blocking services, and damages, ruling that the awards in the lower court were sufficient and appropriate.

English Summary

Facts

The data subject was a registered user of Twitter, operated by the parent company of the controller. The data subject posted on multiple occasions content that the controller removed on the same days. On 13 February 2022, the controller deactivated the data subject's account and notified them.

The data subject sought legal redress, and the LG Köln ordered the controller to fully restore the profile, provide information on whether the deactivation had been undertaken by a third-party company, and cover the data subject's legal costs. The court rejected the data subject's additional requests for data correction, prevention of further account blocking, and damages of €1,500.

The data subject appealed, seeking these rejected requests. The controller, however, withdrew its appeal.

Holding

The Higher Regional Court of Cologne dismissed the data subject's appeal.

First, the court held that the data subject's request to delete all deletion and blocking notes from their user data record did not establish a valid deletion claim under Article 17 GDPR#1 as the upcoming legal processes made the data necessary for the defence of legal claims Article 17 GDPR#3e.

The court found that the controller's documentation of violations against its terms did not entitle the data subject to a correction claim under Article 16 GDPR. The statements on the deletion counter were not factual inaccuracies but legal assessments. Thus, the claim for correction rights according to Article 16 GDPR did not apply.

Third, the court examined the request to prevent future account blocks without prior notification and found it excessively broad. Certain scenarios, such as blocking for unlawful content, permitted the controller's immediate action under legal compliance obligations. Therefore, this claim was unreasonable.

astly, the court dismissed the request for damages, as the appeal did not present a clear basis for differentiating claimed material and immaterial damages (€1,500 total), which contravened procedural rules.

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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.

Higher Regional Court of Cologne, 15 U 45/23
Date:
25.01.2024
Court:
Higher Regional Court of Cologne
Judicial Panel:
15th Civil Senate
Type of Decision:
Judgment
File Number:
15 U 45/23
ECLI:
ECLI:DE:OLGK:2024:0125.15U45.23.00
 
Ruling:

The plaintiff's appeal against the judgment of the 28th Civil Chamber of the Regional Court of Cologne - 28 O 107/22 - pronounced on 8 March 2023 is dismissed.

The withdrawal of the defendant's appeal against the aforementioned judgment results in the loss of the appeal.

The costs of the appeal proceedings are to be borne by the plaintiff at 40 % and by the defendant at 60 %.

The cost decisions of both instances are provisionally enforceable without security. Both parties may avert enforcement by providing security in the amount of 110 % of the enforceable amount unless the respective other party provides security in the amount of 110 % of the respective amount to be enforced prior to enforcement.

To the extent that the appeal request under item a is dismissed, the revision is admitted.
 

1     Reasons:

2     I.

3     The plaintiff was a registered user of the social network S., operated by the defendant's parent company, and as such was a contractual partner of the defendant. On 28 November and 11 December 2021, as well as on 5 and 13 January 2022, the plaintiff published posts on his profile, which the defendant removed on the same day. On 13 February 2022, the defendant deactivated the plaintiff's user account and sent him a corresponding message.

4     In the contested judgment, to which reference is made for all further details of the undisputed facts as well as for the first-instance arguments and applications, the Regional Court ordered the defendant, as requested, to fully restore the plaintiff's profile, to inform the plaintiff whether the deactivation of his profile was carried out by an authorized company and, if so, by which one, and to release the plaintiff from extrajudicial legal fees. To the extent that the plaintiff also requested that the defendant be ordered to correct the data stored by it, to refrain from blocking or deactivating the plaintiff's account, and to pay the plaintiff damages in the amount of €1,500, the Regional Court dismissed the claim. The plaintiff continues to pursue these requests with his appeal. The defendant has withdrawn its appeal.

5     The plaintiff reiterates and elaborates on his first-instance legal arguments in the appeal proceedings. Regarding the claim asserted with the appeal request under item a, he argues that storing an unlawful deletion and blocking action, which according to the defendant's own assertion would no longer be counted as a violation after a certain period, is multiple times unlawful under data protection law and is not necessary for the assertion, exercise, or defense of legal claims. In the event of a conviction for data deletion as requested, the defendant would still be in possession of the documents related to the present legal dispute and the unlawfully created deletion notes, only that these notes would no longer be present in the plaintiff's dataset. The deletion claim follows from Art. 17(1) GDPR, and also from § 280(1), § 249(1) BGB. To the extent that the Regional Court missed a conclusive presentation of the deletions that occurred in the past, this is doubly incorrect. For one, the deletion claim exists because the defendant no longer needs the data, even if the plaintiff had actually violated the community standards. Secondly, it is the defendant who claims the right to collect data on alleged contractual violations by the plaintiff; thus, it is also up to the defendant to present and provide proof of this.

6     The plaintiff essentially requests,

7     to partially amend the contested judgment and additionally order the defendant - under threat of enforcement measures - to:

8     a) correct the plaintiff's data stored by it to the extent that all deletion and blocking notes are removed from the user data set and the counter that records the violations underlying the individual blocks is completely reset,

9     b) refrain from blocking the plaintiff on S. (in particular denying him the use of S.'s functions such as posting contributions, commenting on other contributions, and using the messaging system) or deactivating his account without prior notice of the intended block/account deactivation and granting the opportunity for a counter-statement with subsequent new decision,

10     c) pay the plaintiff €1,500 plus interest at five percentage points above the base rate since 13 February 2022.

11     The defendant requests,

12     to dismiss the plaintiff's appeal.

13     The defendant defends the contested decision. In particular, the claim asserted with the appeal request under item a does not arise from the contract or from Art. 16 or 17 GDPR. To the extent that the plaintiff's personal data is processed, this is necessary to defend against the defendant's legal claims. The content violating community standards remains contractually non-compliant. It is therefore necessary to document such violations in the event of a threatened or pending court case. The plaintiff does not explain in any way which documents should still be available to the defendant - as claimed by the plaintiff - even after data deletion has occurred.

14     II.

15     The plaintiff's appeal is unsuccessful. The Regional Court rightly partially dismissed the claim.

16     1. The international jurisdiction of the Regional Court of Cologne follows at least from the fact that the defendant submitted to the proceedings without objecting to the lack of jurisdiction (Art. 26(1) Regulation [EU] 1215/2012).

17     2. Furthermore, it is undisputed that the contractual relationship between the parties is governed by German law.

18     3. The first-instance request no. 2, which the plaintiff pursues with the appeal request under item a, is unfounded.

19     a) With this request, the plaintiff seeks, among other things, "the deletion of all deletion and blocking notes from the user dataset". The defendant is not obliged to do so.

20     To the extent that the request covers the information about the deletions of the plaintiff's posts on 28 November and 11 December 2021 as well as on 5 and 13 January 2022, which is presented in the present proceedings and evident from the statement of facts of the contested judgment, the deletion claim asserted to this extent, which can only arise from Art. 17(1) GDPR, is excluded under Art. 17(3)(e) GDPR, because the processing is necessary for the defense of legal claims. There can be no doubt, with regard to possible enforcement proceedings and also to possible future legal disputes between the parties, that the defendant may continue to store the facts on which the Regional Court's final judgment ordering the restoration of the plaintiff's profile is based, as well as the judgment itself (see OLG Karlsruhe, judgment of 26 May 2023 - 10 U 24/22, MMR 2023, 962 para. 124 for an ongoing case). In this respect, the present case differs from the case underlying the judgment of the Higher Regional Court of Stuttgart of 20 December 2023 - 4 U 49/23 - submitted by the plaintiff (annex to the brief of 21 December 2023). In the case decided by the Higher Regional Court of Stuttgart, following the final dismissal of further requests, only the data correction claim as referred to by the plaintiff was further pursued.

21     The plaintiff himself also appears to assume, according to the appeal statement, that the defendant does not have to delete the documents related to the present legal dispute and only seeks "that these notes are no longer present in the plaintiff's dataset with the risk of further data processing" (page 11). However, such a restriction is not expressed in the complaint request. It would also be indefinite, as it is unclear what is meant by "plaintiff's dataset". Moreover, the plaintiff cannot dictate to the defendant how to structure its data about him.

22     The plaintiff continues to fail to substantiate his claim that, beyond the cases presented in the statement of facts of the contested judgment, there have been further removals of his posts and blockings of his profile by the defendant. It is up to him to present which data the asserted deletion claim is supposed to refer to. Only on the basis of such a presentation can it be verified whether the data is lawfully stored.

23     b) The plaintiff also seeks "the complete reset of the counter that records the violations underlying the individual blockings". The defendant is not obliged to do so either.

24     Such a claim does not arise from Art. 16(1) GDPR. The plaintiff does not assert that the number of actual blockings is incorrectly recorded in the defendant's data (see OLG Karlsruhe, judgment of 26 May 2023 - 10 U 24/22, MMR 2023, 962 para. 123). To the extent that the defendant considers the incidents leading to the blockings to be violations of its terms of use and records this in its data by counting the violations it has affirmed, the stored number is not a fact subject to proof of truth, but a legal assessment. Value judgments by private individuals are generally excluded from the correction obligation due to the protection of freedom of expression, as long as they do not contain factual elements (see OLG Celle, judgment of 20 January 2022 - 13 U 84/19, MMR 2022, 399 para. 45; OLG Karlsruhe, judgment of 26 May 2023 - 10 U 24/22, juris para. 255 in MMR 2023, 962 not printed there; LG Frankfurt am Main, judgment of 3 September 2020 - 2-03 O

 48/19, MMR 2021, 271 para. 89 f.; Worms in BeckOK Datenschutzrecht, Art. 16 GDPR para. 54 [status: 1 August 2023]; Herbst in Kühling/Buchner, DS-GVO BDSG, 4th ed., § 16 GDPR para. 8 f.). The defendant's stored own legal opinion on how often the plaintiff violated the terms of use does not bind the plaintiff and does not have any legal disadvantages for him (see OLG Celle, judgment of 20 January 2022 - 13 U 84/19, MMR 2022, 399 para. 45).

25     The claim also does not arise from the usage contract between the parties in conjunction with § 241(2) BGB. The defendant's obligation to respect the interests of its users and their right to informational self-determination does not require it to legally evaluate certain behaviors of its users in a specific way for the reasons mentioned above. To the extent that this is assessed differently in the higher court jurisprudence without further explanation (see OLG Munich, judgments of 7 January 2020 - 18 U 1491/19, MMR 2021, 79 para. 146; of 12 April 2022 - 18 U 6473/20, juris para. 45; OLG Rostock, judgment of 29 September 2021 - 2 U 4/20, juris para. 25 f.; OLG Dresden, judgment of 8 March 2022 - 4 U 1050/22, MMR 2022, 479 para. 14; OLG Karlsruhe, judgment of 24 May 2022 - 14 U 270/20, juris para. 53), the Senate believes this contradicts the values underlying the denial of a claim under Art. 16(1) GDPR, without any apparent reason why these values should not also be relevant for contract interpretation and the determination of contractual duties of consideration (see also OLG Karlsruhe, judgment of 26 May 2023 - 10 U 24/22, MMR 2023, 962 para. 123).

26     In the present case, it is also significant that, unlike in cases where a contractual data correction claim has been affirmed so far, this claim is not linked to a claim for an injunction due to a specific violation. The plaintiff is entitled to claims for the restoration of the profile regardless of the awarded claim and also to claims for the prevention of another deletion of the posts repeated in the statement of facts of the contested judgment if they are reposted (see BGH, judgment of 29 July 2021 - III ZR 179/20, BGHZ 230, 347 para. 100). If he were to assert these claims in court in the future and the claimed correction claim was granted in the present proceedings, there would be a risk that the question of whether the individual posts constitute breaches of the plaintiff's contractual duties would be assessed differently in the respective court proceedings.

27     4. The first-instance request no. 3, which the plaintiff pursues with the appeal request under item b, is admissible but also unfounded.

28     a) Contrary to the Regional Court's assumption, the plaintiff does not seek the fulfillment of information obligations with this request. Instead, he demands that the defendant refrain from blocking him or deactivating his account. The addition "without prior notice of the intended blocking/account deactivation and granting the opportunity for a counter-statement with subsequent new decision" does not establish a claim for information but merely limits the asserted obligation to refrain (see OLG Munich, judgment of 20 September 2022 - 18 U 6314/20, GRUR 2023, 96 para. 30; contrary OLG Frankfurt, judgment of 30 June 2022 - 16 U 229/20, juris para. 61).

29     b) The request is sufficiently specific (§ 253(2) no. 2 ZPO).

30     The request does not reflect a legal text requiring interpretation (see BGH, judgment of 26 January 2017 - I ZR 207/14, GRUR 2017, 422 para. 18), but contains a sufficiently concrete and clear description of the action to be refrained from (see OLG Munich, judgment of 20 September 2022 - 18 U 6314/20, GRUR 2023, 96 para. 15; OLG Karlsruhe, judgment of 24 May 2022 - 14 U 270/20, juris para. 55; contrary OLG Frankfurt, judgment of 30 June 2022 - 16 U 229/20, juris para. 59 f.). If the request were successful, the defendant would be required to refrain from blocking the plaintiff or deactivating his account unless it informs him in advance of the intended blocking or deactivation and grants him an opportunity for a counter-statement.

31     Whether there are cases where the defendant is entitled to block the plaintiff or deactivate his account without prior notice and without granting an opportunity for a counter-statement is not a question of the specificity of the request but of its merits. A request is not unspecific simply because the prohibition is too broadly formulated (see Zöller/Greger, ZPO, 35th ed., § 253 para. 13b).

32     Furthermore, the request is not unspecific because cases are excluded where the defendant claims a violation of legal provisions. Contrary to the plaintiff's arguments, such a possibly unspecific restriction cannot be derived from the request.

33     c) The request is unfounded because it is too broadly formulated.

34     aa) Even assuming that the defendant's right to block accounts is not effectively regulated in the terms of use (see BGH, judgment of 29 July 2021 - III ZR 179/20, BGHZ 230, 347 para. 30 ff. for an older version of the terms of use), and disregarding the possibility of future changes to the terms of use (see OLG Karlsruhe, judgment of 24 May 2022 - 14 U 270/20, juris para. 57), there may be cases where the defendant is entitled to block the plaintiff without prior notice and granting an opportunity for a counter-statement with subsequent new decision (see Senate decision of 9 June 2022 - 15 W 30/22, not published). For instance, the defendant is required to act immediately to remove or block illegal content in its social network as soon as it becomes aware of facts or circumstances indicating the illegality of the content (see BGH, judgment of 29 July 2021 - III ZR 179/20, BGHZ 230, 347 para. 98). The measures required and permitted - also regardless of the effectiveness of a contractual authorization for account blocking - may include the temporary blocking of a user account (see OLG Munich, judgment of 12 April 2022 - 18 U 6473/20, juris para. 50 f.). The defendant does not have to inform the user in advance in such decisions but merely immediately (§ 3(2) sentence 1 no. 5 NetzDG). Therefore, the request, which seeks to prohibit the defendant from blocking the plaintiff without prior notice in all cases, including illegal content, is too broadly formulated (similarly OLG Karlsruhe, judgment of 26 May 2023 - 10 U 24/22, MMR 2023, 962 para. 134; KG, decision of 20 February 2023 - 10 W 85/22, MMR 2023, 509 para. 28).

35     The plaintiff cannot be granted a narrower prohibition claim as a lesser alternative. Whether the conditions for a blocking without a hearing exist can only be assessed on a case-by-case basis (see OLG Munich, judgment of 12 April 2022 - 18 U 6473/20, juris para. 52; KG, decision of 20 February 2023 - 10 W 85/22, MMR 2023, 509 para. 29).

36     Whether the defendant must refrain from blocking the plaintiff at all without subsequently informing him immediately of the reason for the block (see OLG Munich, judgment of 20 September 2022 - 18 U 6314/20, GRUR 2023, 96 para. 32) can remain undecided because such an obligation to refrain is not covered by the present request and the grounds for the action.

37     bb) The present request is also too broadly formulated to the extent that it seeks to prohibit the defendant from deactivating the plaintiff's account. The defendant's right to terminate for cause under item 4.2 of the terms of use does not require that the defendant inform the plaintiff in advance of the intended deactivation and grant him an opportunity for a counter-statement. In the event of a breach of a duty under the terms of use, the right to terminate requires a remedy period or a warning. It is also crucial that, under item 4.2 of the terms of use and § 314(2) BGB, a remedy period is not required if the other party seriously and definitively refuses to fulfill its obligations or if special circumstances justify immediate termination after weighing the interests of both parties. Despite the Regional Court's correct considerations regarding the invalidity of the termination of 13 February 2022, there may also be cases where the defendant is entitled to terminate for cause without informing the plaintiff in advance of the intended termination.

38     5. The first-instance request no. 5, which the plaintiff pursues with the appeal request under item c,

 is, as the defendant rightly objected at first instance, inadmissible.

39     An alternative accumulation of claims, where the plaintiff derives a single claim from several procedural claims and leaves it to the court to decide which legal ground to base the judgment on, generally violates and so does in the present case, the requirement of § 253(2) no. 2 ZPO to clearly specify the legal ground for the claim (see BGH, judgment of 21 November 2017 - II ZR 180/15, NJW 2018, 1259 para. 8 with references). Therefore, the present request is inadmissible. For the plaintiff asserts in this request, according to the statements in the complaint, both a material and an immaterial damage equally, without apportioning the total claimed amount of €1,500 to the immaterial and material damage. A claim for immaterial damages is a different subject of dispute than a claim for compensation of pecuniary damage (see BGH, judgments of 18 March 1959 - IV ZR 182/58, BGHZ 30, 7, 18; of 19 August 2014 - VI ZR 308/13, NJW 2014, 3300 para. 10; Zöller/Vollkommer, ZPO, 34th ed., Introduction para. 73).

40     The Senate informed the plaintiff of the inadmissibility of the request during the oral hearing. The plaintiff then expressly refrained from adjusting the request. Therefore, it can remain undecided whether the plaintiff is neither entitled to a material nor an immaterial damages claim (see e.g. OLG Munich, judgment of 7 January 2020 - 18 U 1491/19, MMR 2021, 79 para. 159 ff.; OLG Nuremberg, judgment of 4 August 2020 - 3 U 4039/19, GRUR-RS 2020, 50445 para. 131 ff.; OLG Dresden, judgment of 11 June 2019 - 4 U 760/19, CR 2020, 338, 340 f.).

41     6. The procedural ancillary decisions are based on §§ 97(1), 516(3) sentence 1, 708 no. 10, 711 ZPO. The different cost ratio compared to the first instance results from the fact that the plaintiff has to bear the costs in the appeal proceedings due to the - to a lesser extent calculable - appointment fees alone.

42     7. To the extent that the appeal request under item a is dismissed, securing uniform case law requires a decision by the revision court (§ 543(2) sentence 1 no. 2 alt. 2 ZPO). As stated in item 3 letter b, the Senate's present decision deviates from the case law of several other higher regional courts. In relation to the other appeal requests, the conditions for allowing the revision do not exist (§ 543(2) sentence 1 ZPO).

43     Value of the appeal proceedings: €14,750, but only €4,250 for the hearing.