OLG Nürnberg - 3 U 2469/23
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| OLG Nürnberg - 3 U 2469/23 | |
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| Court: | OLG Nürnberg (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 17 GDPR Article 6(1) DSA |
| Decided: | 23.07.2024 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 3 U 2469/23 |
| European Case Law Identifier: | |
| Appeal from: | LG Nürnberg-Fürth 11 O 7452/21 |
| Appeal to: | Unknown |
| Original Language(s): | German |
| Original Source: | Bayern.Recht (in German) |
| Initial Contributor: | stella |
A data subject sued a controller for defamation and breach of personal rights regarding statements made in a video uploaded to Youtube.
English Summary
Facts
On 1 October 2020, a journalist uploaded a video to the Youtube platform (controller). The data subject complained about statements made about him and the company he was part of. The journalist did not reply to any emails about the uploaded video.
On 13 November 2020, the data subject complained to the controller about the video. In response on the same day, the controller asked the data subject for providing the specific statements in corresponding time.
On 7 May 2021, the data subject's lawyer requested the deletion of the video from the Youtube (controllers platform). The controller asked the data subject to provide proof of identity and information about the statements that violated personal rights. The data subject sent a power of attorney. The controller explained that more information was needed about the image, name, or other personal data.
The data subject's lawyer wrote to the controller on 8 November 2021. The controller then blocked the video for the local state domain and informed the data subject by email on 16 November 2021. The controller has not provided any further steps.
The data subject initiated legal proceeding, which resulted in the controller being ordered to refrain from making the contribution to the video posted by the journalist. The controller had not fulfilled its obligation to request appropriate information from the author of the video.
The controller appeals against aforementioned judgement.
Holding
The Higher Regional Court Nuremberg amended the judgement of the Regional Court of Nuremberg-Fürth of 14 November 2023, case no. 11 O 7452/21. The action is dismissed.
The link between the data subject and the company was found to be weak, as the data subject was not in a representative position.
The Higher Regional Court Nuremberg concluded that the video presented opinions rather than established facts about the data subjects professional capacity and operations in the company.
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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.
Title: No liability of the platform operator if the violation of law is not easily recognizable Chains of norms: BGB § 1004 para. 1 sentence 2, § 823 para. 1 analogous GG Art. 1 para. 1, Art. 2 para. 1 DSA Art. 6 para. 1 GDPR Art. 17 Principles: 1. When balancing interests to determine the review effort of a host provider, including obtaining a statement from the person responsible for the disputed contribution, the need for protection of the person affected must not be ignored - since the "review and statement procedure" is not an end in itself: The balancing must therefore take into account the extent to which the person affected is dependent on the facts that the service provider could learn from the user in the context of a "hearing procedure" in order to enforce his claim due to a lack of his own knowledge. 2. When assessing whether the host provider has a secondary burden of proof, it must also be taken into account whether the facts in the contested post originate from the sphere of the person concerned or whether it is possible and reasonable for the person concerned to clarify the facts further - for example by contacting the user themselves. Keywords: International jurisdiction, injunction, liability as an indirect disturber, violation of personal rights, liability privilege, secondary burden of proof, balancing of fundamental rights, expression of opinion, assertion of facts, balancing, active legitimacy, defamatory criticism, data protection Lower court: LG Nürnberg-Fürth, judgment of November 14, 2023 - 11 O 7452/21 Sources: K & R 2024, 678 GRUR-RS 2024, 18386 Tenor 1. On the defendant's appeal, the judgment of the Nuremberg-Fürth Regional Court of November 14, 2023, file no. 11 O 7452/21, is amended. The action is dismissed. 2. The plaintiff must bear the costs of the legal dispute in both instances. 3. The judgment is provisionally enforceable. The value in dispute for the appeal proceedings is set at €7,500.00. Reasons for the decision 1 The plaintiff is a professor of economics at the T. University and a partner in W. GmbH, whose business, according to the commercial register, is management consulting (excluding legal and tax advice), personnel placement and import and export as well as trading in goods of various kinds, in particular agricultural products in all forms and foodstuffs. 2 On October 1, 2020, the journalist Mr. J. uploaded the video in question to the YouTube channel A. on the video platform operated by the defendant. The video had already been leaked to the managing director of W. GmbH. Mr. J. did not respond to emails sent to him by the shareholders of W. GmbH. 3 On November 13, 2020, the plaintiff complained to the defendant about the video in question using the online form provided by the defendant. On the same day, the defendant asked the plaintiff to provide the specific statements and the corresponding time of these statements. In a letter from his legal representatives dated May 7, 2021, the plaintiff requested that the defendant delete the post. The defendant then asked the plaintiff to provide the relevant information on the statements allegedly violating personal rights and to provide sufficient proof of the plaintiff's identity. The plaintiff then sent a power of attorney as proof of identity. The defendant then explained that clear identification was required and that no further measures could be initiated without precise information about the appearance of the image, name or other personal data. 4 The plaintiff warned the defendant in a letter from his lawyer dated November 8, 2021. The defendant subsequently blocked the video for the local state domain and informed the plaintiff of the blocking by email dated November 16, 2021. The defendant did not submit the required cease-and-desist declaration or forward the plaintiff's complaint to the author of the video. 5 The Nuremberg-Fürth Regional Court issued the following judgment on November 14, 2023: The defendant is [...] ordered to refrain from making the contribution https://www.youtube.com... posted by Mr. J. on October 1, 2020 on the YouTube Internet platform under the YouTube channel on the YouTube Internet platform. 6 In its justification, the Regional Court stated in particular that it had international jurisdiction because the plaintiff had conclusively presented a clear domestic connection to the video in question. The plaintiff is entitled to an injunction against the defendant in accordance with Section 823 (1), Section 1004 (1) of the German Civil Code, Article 1 (1), and Article 2 (1) of the Basic Law. The defendant is liable as an indirect disturber. It had violated its duty to examine by not forwarding the plaintiff's specific and sufficient complaints in the lawyer's warning letter dated November 8, 2021 to the person responsible for the video. The statements in dispute are essentially allegations of fact. Since the defendant had not fulfilled its obligation to request appropriate information from the author of the video, the plaintiff's claim that the allegations he complained about were untruthful must be considered admitted in accordance with the general rules on the secondary burden of proof under Section 138 (3) of the Code of Civil Procedure. 7 The defendant is appealing against this judgment in its appeal, with which it is pursuing its motion to dismiss the action. In support of its appeal, it states that due to the lack of submission of the video and only an excerpted translation, there is no sufficiently specific subject matter of the dispute and no verifiable facts. The defendant effectively denied that the GmbH did not need a job placement license for its activities. In addition, the regional court incorrectly assumed its international jurisdiction and a violation of the plaintiff's personal rights. The contested statements, which concern the plaintiff personally, were expressions of opinion. The other incriminated statements only concern the GmbH or Mr W. In addition, the defendant's liability is excluded due to the applicable liability privilege under Art. 6 DSA. 8 The plaintiff requests that the appeal be dismissed. Since the video in question was undisputedly still available at the time of the complaints and warnings by the plaintiff or their representatives, the defendant should have made its own inquiries about it if it had doubts about the translation. The regional court rightly assumed its international jurisdiction. The defendant violated its duty to examine because the lawyer's warning letter dated November 8, 2021 met the requirements for a specific complaint and the defendant did not forward the video to the person responsible for publication. 9 The defendant's admissible appeal is justified. Although the German courts have international jurisdiction (see below under section I.) and the subject matter of the dispute is sufficiently defined (see below under section II.), the action is, however, unfounded because the conditions for the defendant's liability as an indirect disturber for the alleged violations of the plaintiff's personal rights are not met (see below under section III.), and the asserted claim does not arise from Art. 17 GDPR (see below under section IV.). 10 I. The regional court correctly assumed the international jurisdiction of the German courts, which must be examined ex officio in each stage of the proceedings, under Section 32 of the Code of Civil Procedure due to a sufficient domestic connection (cf. BGH NJW 2012, 148 para. 11). Firstly, the video in question deals with a German company; the plaintiff, who lives in Germany, is also mentioned by name several times. Secondly, the video - which is in Farsi - is also aimed at Iranian skilled workers in Germany, since the GmbH continues to provide services after the recruitment from Iran to Germany and, in addition, a "negative advertising effect" that occurs in Germany can have a direct impact on the success of the GmbH's recruitment efforts in Iran. Finally, the YouTube platform on which the video was uploaded is used extensively in Germany, while the use of YouTube is prohibited in Iran. 11 II. The application for an injunction is sufficiently specific, Section 253 Paragraph 2 No. 2 of the Code of Civil Procedure. The admissibility of the present injunction is not in particular due to the fact that the plaintiff did not submit the video in question itself, but only an excerpted translation of the statements made in it. According to the wording of the application, the injunction sought refers to the specific statements contained in the article https://www.youtube.com..., which was posted by Mr. J. on the YouTube internet platform YouTube under the YouTube channel A. on October 1, 2020. The injunction request directed at this specific infringement complies with the requirement of specificity. 12 Whether the injunction request goes too far because - as the plaintiff only submitted an excerpted translation of the video - it is not sufficiently possible to take the context of the statements into account (cf. BGH GRUR 2013, 312 para. 32 - IM "Christoph"), does not need to be decided, since the action is unfounded anyway. 13 III. The conditions for the defendant to be liable as a so-called indirect infringer for a claim for injunctive relief under Section 1004 Paragraph 1 Sentence 2, Section 823 Paragraph 1 of the German Civil Code in conjunction with Article 1 Paragraph 1, Article 2 Paragraph 1 of the German Basic Law due to a violation of the plaintiff's personal rights are not met. 14 1. With regard to the conditions for liability of the indirect infringer, the Senate proceeds from the following principles: 15 a) According to the case law of the Federal Court of Justice, the liability of the so-called indirect infringer may not be excessively extended to third parties who did not themselves cause the unlawful infringement. It therefore requires a violation of conduct obligations, in particular of inspection obligations. The extent of the damage is determined by whether and to what extent the person held liable as an indirect infringer can reasonably be expected to prevent the infringement under the circumstances of the individual case (BGH GRUR 2016, 855 para. 22 – www.jameda.de). 16 According to this, in order to avoid liability as an indirect intruder, a host provider is not obliged in principle to check the contributions posted by users on the Internet for possible violations of law before publication. However, they are responsible as soon as they become aware of the violation of law. If an affected party informs the host provider that their personal rights have been violated by the user of their service, the host provider may be obliged to prevent such disruptions in the future (BGH a.a.O. Rn. 23 - www.jameda.de). 17 If a violation of personal rights is alleged, however, a violation of law cannot always be established without further ado. This is because it requires a balance between the right of the affected party to protection of their personality and the protected right of the provider to freedom of opinion and freedom of the media. An obligation for the provider to take action therefore presupposes that it is confronted with a complaint from an affected party that is formulated so specifically that the infringement can easily be affirmed on the basis of the affected party's claim - i.e. without detailed legal and factual review (BGH GRUR 2022, 1459 para. 28 - hotel review portal) (BGH a.a.O. para. 24 - www.jameda.de; BGH GRUR 2012, 311 para. 25 - blog entry; see also BGH GRUR 2022, 1308 para. 115 - YouTube II on copyright infringements). 18 If there is such a specific complaint, on the basis of which the violation of personal rights is easily ascertainable, an assessment of the entire facts is required, which may also include investigations, including obtaining a statement from the person responsible for the contribution in question (cf. BGH, op. cit., para. 24 - www.jameda.de). In order to determine what level of verification effort is to be required from the host provider in each individual case, a comprehensive balancing of interests is required, taking into account the circumstances of the individual case, in which the fundamental rights of those involved must be taken into account. The weight of the reported violation of rights and the provider's ability to obtain information are of decisive importance. However, the function and task of the service operated by the provider and the personal responsibility of the user who is directly responsible for the statement infringing personal rights - who may be permissible anonymously - must also be taken into account (BGH, op. cit., para. 38 - www.jameda.de). This can - since the review to be carried out by the portal operator must clearly have the aim of clarifying the legitimacy of the complaint of the person concerned - also lead to the service provider having to send the complaint to the user and ask them to comment (BGH a.a.O. Rn. 42 f. - www.jameda.de). However, in the context of this balancing of interests - since the "review and comment procedure" is not an end in itself - the need for protection of the person concerned must not be ignored: The balancing must therefore take into account the extent to which the person concerned is dependent on the facts that the service provider could learn from the user in the context of a "hearing procedure" in order to enforce his claim due to a lack of his own knowledge. 19 b) This case law of the Federal Court of Justice on liability for interference is in line with the requirements of the now applicable Art. 6 Para. 1 of the Digital Services Act (DSA), which replaces the previous liability limitations of Section 10 Sentence 1 of the Telemedia Act. 20 aa) The defendant is an intermediary service provider within the meaning of Art. 2 para. 1 DSA because it operates a "hosting" service that consists in storing information provided by a user on his behalf (Art. 3 lit. g) iii) DSA). It has not been demonstrated that the defendant left its neutral role and took on an active role when uploading the video (cf. Recital 18 sentence 1 DSA), in particular that it knowingly cooperates with a user to carry out illegal activities (cf. Recital 18 sentence 1 DSA). In particular, the provision of the technical infrastructure including search and ranking functions alone is not sufficient to establish an active role of the service provider (cf. ECJ GRUR 2021, 1054 para. 95, 107 ff. - YouTube and Cyando). 21 bb) Providers of intermediary services are not subject to a general obligation to monitor the information they transmit or store or to actively search for circumstances that indicate illegal activity (Art. 8 DSA, cf. Section 7 Para. 2 TMG a.F.). 22 In addition, the provision of Art. 6 DSA contains an exclusion of liability for hosting services in order to keep the liability risks for these services within limits. Its scope of application is open because the user Mr. J. is neither subject to the defendant's control or supervision, nor is the video the defendant's own content or content that it has made its own. Therefore, the defendant as a service provider is not liable for the information stored in the video on behalf of the user Mr. J., provided that it does not have actual knowledge of illegal content and, as soon as it acquires this knowledge or awareness, it acts promptly to block access to the illegal content or to remove it. Knowledge of specific illegal information is required, which is why the reference to an alleged violation of personal rights must be so precise that the service provider can easily find the content in question and determine its illegality without further ado (BeckOK IT-Recht/Sesing-Wagenpfeil, 14th Ed. 1.4.2024, DSA Art. 6 Rn. 52). 23 According to Art. 6 DSA, there must therefore also be a reason for the service provider to check the content for its illegality. Such a reason can arise in particular from sufficiently precise and substantiated user reports in the procedure under Art. 16 DSA, whereby the inability to clarify the illegality must not work to the detriment of the service provider (BeckOK IT-Recht/Sesing-Wagenpfeil, 14th Ed. 1.4.2024, DSA Art. 6 Rn. 41). According to Art. 16 (3) DSA, even in a reporting procedure to be provided, the information must enable a diligent provider of hosting services to determine that the relevant activity or information is unlawful without an in-depth legal review. It must not make it necessary for the hosting service provider to independently assess the context and subject it to a detailed legal review (NK-DSA/Raue, 1st ed. 2023, DSA Art. 16 Rn. 51). 24 cc) The limitation of liability in Section 10 Sentence 1 TMG did not apply to claims for injunctive relief that are based on a previous violation of law (BGH a.a.O. Rn. 21 - hotel review portal). It remains to be seen whether this can also be assumed for Art. 6 DSA (cf. BeckOK IT-Recht a.a.O. Art. 6 para. 61 ff.; NK-DSA/F. Hofmann, 1st ed. 2023, DSA Art. 6 para. 27 f.). In any case, Art. 6 (4) DSA - just like Art. 14 (3) of the E-Commerce Directive - leaves untouched the possibility that a judicial authority under the legal system of a Member State may require the service provider to stop or prevent an infringement (cf. (BGH a.a.O. Rn. 20 - www.jameda.de). This primarily affects civil law claims for removal and injunctive relief. In material terms, such orders in German law in the case of violations of personal rights are based on the principles of liability as indirect disturbers analogous to Section 1004 of the German Civil Code (BeckOK IT-Recht a.a.O. Art. 6 Rn. 64). 25 dd) Whether the fundamental need for the host provider to obtain a statement from the user, as justified by the Federal Court of Justice, contradicts the requirements of the DSA (see Müller-Terpitz/Köhler/Barudi, DSA, 1st ed. 2024, Art. 16 para. 33; also critical of the mixing of the acquisition of knowledge under Section 10 TMG and the inspection obligations in the context of liability for interference MüKoStGB/Altenhain, 4th edition 2023, TMG Section 10 para. 17), can remain open in the case in dispute. However, in the opinion of the Senate, various circumstances speak against such a contradiction, especially since Recital 50 sentence 1 of the DSA refers to the particularly important role of the hosting service provider in dealing with illegal online content. 26 On the one hand, the acquisition of knowledge within the meaning of Art. 6 paragraph 1 letter b DSA interacts with the reporting procedure to be established under Art. 16 DSA. According to Art. 16 (3) DSA, these reports of illegal content are intended to ensure that, for the purposes of Art. 6 DSA, actual knowledge or awareness of the individual piece of information in question is assumed if they enable a diligent provider of hosting services to determine without detailed legal review that the relevant activity or information is illegal. Art. 16 (6) DSA also contains an obligation to make a complaint decision that is careful, free from arbitrariness and objective (cf. NK-DSA/Raue, loc. cit. Art. 16, para. 62). And the obligation to carefully process a report according to Art. 16 (3) DSA can imply the involvement of the author of the message. 27 On the other hand, this obligation for the host provider to obtain a statement from the user can be subsumed under the provisions of Art. 6 (4) DSA. According to this provision, the privilege contained in paragraph 1 does not affect the possibility that a judicial authority under the legal system of a Member State may require the service provider to stop or prevent an infringement. This may also include an obligation on the part of the provider to clarify the legitimacy of the complaint by the person concerned, including a statement by the user, based on liability for interference and based on a comprehensive balancing of interests taking into account the circumstances of the individual case. 28 c) Against the background of these material requirements for the host provider to take action, the portal operator has a secondary burden of proof in procedural terms with regard to the facts relevant to the balancing of the conflicting interests protected by fundamental rights if the plaintiff is unable to provide a more detailed explanation in this regard and has no opportunity to further clarify the facts. The portal operator may also have a duty to research. This is generally reasonable for him, since he may be required to request additional information and evidence of the facts from the user due to his material duty to examine the facts. In procedural terms, this corresponds to his obligation to request corresponding information from the user as part of his secondary burden of proof. If the portal operator does not comply with this obligation, the plaintiff's factual allegations are to be considered admitted in accordance with the general rules on the secondary burden of proof under Section 138 Paragraph 3 of the Code of Civil Procedure (see BGH, ibid., marginal nos. 47-49 - www.jameda.de). 29 This principle from the "Jameda ruling" on the burden of proof corresponds to the established case law of the Federal Court of Justice, according to which the opposing party has a secondary burden of proof if the party with the primary burden of proof has no detailed knowledge of the relevant circumstances and no opportunity to further clarify the facts, while the opposing party can easily and reasonably provide more detailed information on this. It neither leads to a reversal of the burden of proof nor to an obligation on the part of the opposing party that goes beyond the procedural duty to tell the truth and the burden of explanation to provide the claimant with all the information required for his success in the case (BGH GRUR 2014, 657, paras. 17, 18 - BearShare; BGH GRUR 2009, 871, para. 27 - Ohrclips). 30 It follows that the host provider's secondary burden of proof and the associated confession fiction in Section 138 Para. 3 ZPO do not apply if either the facts from the contested post originate from the sphere of the person concerned or if the person concerned is able and reasonably able to clarify the facts further - for example by contacting the user himself. 31 2. In the present case, taking into account the underlying legal standard (below under letter a)), the alleged violations of personal rights cannot easily be affirmed on the basis of the plaintiff's statements (below under letter b)). Therefore, this did not trigger an obligation on the part of the defendant to act as an indirect disturber within the meaning of Art. 6 paragraph 1 DSA or the case law of the Federal Court of Justice on liability (below under letter c)). A different assessment is also not necessary against the background of the principles on the secondary burden of proof (below under letter d)). 32 a) The following legal framework is decisive for the Senate in relation to the requirements for a violation of personal rights: 33 Due to the nature of the right of personality as a framework right, its scope is not absolutely fixed, but must first be determined by weighing up the conflicting interests protected by fundamental rights. The interference with the right of personality is only unlawful if the interest of the person concerned in protection outweighs the interests of the other party worthy of protection (BGH a.a.O. Rn. 30 - www.jameda.de). In this case, the interest of the party being assessed in protecting their social recognition and (professional) honor, guaranteed by Article 1 Paragraph 1, Article 2 Paragraph 1 GG (also in conjunction with Article 12 Paragraph 1 GG) and Article 8 Paragraph 1 ECHR, must be weighed against the freedom of expression of the assessor, enshrined in Article 5 Paragraph 1 GG and Article 10 ECHR. 34 In the case of factual allegations, the balancing of the conflicting interests depends in particular on the truth content. As a rule, true factual statements must be accepted, even if they are detrimental to the person concerned, but untrue statements must not (BGH GRUR 2013, 312 para. 12 - IM "Christoph"). In the case of untrue factual statements, the freedom of expression of the person making the statement must generally give way to the personal rights of the person concerned, because there is in principle no interest worthy of protection in the dissemination of untrue facts. 35 In the case of expressions of opinion, Article 5 paragraph 1 sentence 1 of the Basic Law requires a weighting of the impairment that threatens the freedom of expression of the person making the statement on the one hand and the protected legal interest on the other (BVerfG NJW 2018, 770 para. 18). If the statement cannot be classified as an attack on human dignity or as a formal insult or defamation, the seriousness of the impairment of the legal interests affected is important for the balancing of interests (BVerfG NJW 1995, 3303 [3304] – Soldiers are murderers). 36 In the case of statements in which evaluative and factual elements are mixed in such a way that the statement as a whole is to be regarded as a value judgement, the truth content of the factual elements is the decisive factor in the balancing of interests. If the expression of opinion contains a proven false or knowingly untrue factual core, the fundamental right to freedom of expression usually takes a back seat to the interests of the person affected by the statement. This is because, from the point of view of freedom of expression, there is no interest worthy of protection in maintaining and spreading derogatory factual statements that are untrue. True factual statements, on the other hand, must generally be accepted (BGH NZG 2018, 797 para. 38). 37 The correct interpretation of a statement is an indispensable prerequisite for the correct legal assessment of its content. The decisive factor for the interpretation of a statement is the determination of its objective meaning from the perspective of an unbiased and intelligent audience. Starting from the wording, which cannot, however, conclusively determine the meaning, the linguistic context in which the disputed statement is made must be taken into account in the interpretation. When determining the content of the statement, the objectionable statement must always be assessed in the overall context in which it was made, based on the understanding of an unbiased average reader and general language usage. It must not be removed from the context in which it is made and considered in a purely isolated manner (BGH NZG 2018, 797 para. 20). 38 In principle, a claim is only available to those who are individually and directly affected by the article. The statement must, as understood by the public, deal with the person making the claim or be closely related to their circumstances, their activities or commercial services (Wenzel, The Law of Word and Image Reporting, 6th edition 2018, Chapter 5, marginal no. 262). This is primarily the person mentioned in the statement. An exception to this principle can be assumed in constellations that are based on a very close relationship (wife and husband / parents and children), although in these cases not every (defamatory) statement is sufficient, but the statement must also have an impact on the personality of the person indirectly affected. In addition, in the case of an association, an association member may also be affected if the violation of the association's personal rights also taints the member's own personality image with the idea of diminished value (cf. Grüneberg/Grüneberg, BGB, 83rd ed. 2024, § 823 marginal no. 94). Finally, in the case of legal persons, the person directly responsible, such as the sole shareholder and managing director, may also be entitled to make a claim (BeckOK InfoMedienR/Söder, 44th ed. 1.5.2024, BGB § 823 marginal no. 74). 39 b) Taking this legal standard into account, the statements under attack cannot be qualified as violations of personal rights that are easy to affirm. Either they are expressions of opinion - which require a balancing of interests - not incorrect factual allegations or statements that do not directly concern the plaintiff. 40 aa) The statement explicitly mentioning the plaintiff by name “Mr. W., who is mentioned everywhere as the manager of W. – together with Prof. R. – are only partners in the company” is a permissible factual assertion. This is because the plaintiff himself claims to be a partner in W. GmbH. This corresponds to the colloquial phrase “partner in the company”. 41 The same applies to the claim that Mr. W. appears to the outside world as the manager of W. GmbH. According to the plaintiff’s statement, this statement is also correct, since the plaintiff states in the statement of claim that Mr. W. is involved in the external representation of the company and presents the company’s activities at events in Iran. 42 bb) The statement directly referring to the plaintiff “These people (L., R., W.) who reach into the pockets (of the people in Iran) and take (rob) their money […]” is a value judgement which – since it cannot be classified as defamatory criticism – requires a balancing of fundamental rights interests and therefore does not constitute an easily affirmative violation of personal rights. 43 (1) Overall, it is an expression of opinion, since the challenged statement mixes facts and opinions in such a way that it is characterized overall by the elements of opinion, belief or opinion and its meaning would be distorted by separating the factual and evaluative components of a statement. 44 Determining the objective meaning of the statements that the plaintiff is seeking to be stopped from the perspective of an unbiased and intelligent audience shows that the person making the statement in the video is primarily concerned with expressing his subjective feelings about the business conduct of W. GmbH as a whole. The statement does not describe a specific situation in which the plaintiff "reaches into the pockets" of other people and thus takes money from these pockets by means of theft or fraud. Rather, it is clear that this is an evaluative statement, namely the subjective view of the person making the statement. He is conveying his own value judgement by showing that, in his opinion, the conduct of W. GmbH that is being criticized is dishonest because the people affected are not receiving adequate compensation for their payment. This is a subjective assessment and therefore an expression of opinion. 45 In this context, it should be noted that it is recognised in case law that even the use of words such as "fraud" or "fraudulent" or "machinations" is not to be regarded as a factual assertion of criminal liability, but as a value judgement in the everyday language sense (see only BGH GRUR 2015, 289, para. 10 - Hochleistungsmagneten; OLG Hamburg MMR 2011, 685 [688]; BGH NJW 2002, 1192 [1193]). In its Hochleistungsmagneten decision, the BGH considered the terms "large-scale fraud" or "fraud" to be (permissible) expressions of opinion, since they expressed disapproval of the business conduct of the plaintiff there and thus a subjective assessment. Even if one wanted to understand these terms as an expression of a legal opinion, this would not change their admissibility, because according to the consistent case law of the Federal Court of Justice, legal assessments are generally to be qualified as expressions of opinion and not as statements of fact (BGH a.a.O. Rn. 10 - High-performance magnets). 46 (2) The balancing required to determine whether a personal right has been violated is not dispensable because the statement in question would be to be qualified as defamatory criticism and therefore would not benefit from the protection of freedom of expression under Article 5 Paragraph 1 Sentence 1 of the Basic Law. 47 Due to its effect of suppressing freedom of expression, the term defamatory criticism must be interpreted narrowly. Even excessive, unfair or even offensive criticism does not in itself make a statement defamatory. What must also be added is that the focus of the statement is no longer on the dispute over the matter, but on the defamation of the person concerned, who is to be degraded and pilloried beyond polemical and exaggerated criticism. As a rule, judgmental criticism of the commercial performance of a business enterprise is covered by the fundamental right to freedom of expression even if it is formulated sharply and excessively; it can only be regarded as defamatory criticism under strict conditions (BGH, ibid., para. 18 - high-performance magnets). 48 According to these principles, the disputed statement cannot be qualified as defamatory criticism in the overall context in which it was made, since it cannot be denied a factual connection. The article relates - as can be seen by the average, reasonable recipient - to the commercial field of activity of W. GmbH. This dispute over the matter does not completely fade into the background, as would be the case with defamatory criticism, so that the entire commentary does not amount to a personal insult. The statement does not constitute a formal insult or an attack on the plaintiff's human dignity, as it does not yet exceed the absolute minimum level of human respect (cf. BayObLG, decision of August 15, 2023 - 204 StRR 292/23, para. 30). Particularly in business transactions, one must also put up with sharp and exaggerated criticism (cf. BGH NJW 2015, 773 para. 19). 49 (3) The illegality of the statement in question would therefore have to be decided in the context of an overall balancing of the interests of the plaintiff, who is only affected in his social sphere, and the right of the person making the statement to freedom of expression. Against this background, the violation of the law cannot easily be affirmed on the basis of the plaintiff's claim. 50 cc) The further statement, which refers directly to the plaintiff "It is even sadder that neither Mr. W. nor Prof. R. have specialist knowledge in job placement." also does not contain a violation of personal rights that is easy to affirm. 51 Even if the statement is based on a value judgement - which requires a balancing of interests - it contains the factual assertion that the plaintiff does not have any (special) specialist knowledge in job placement, because in this respect it simultaneously evokes in the addressee the idea of concrete processes that are clothed in the value judgement. Even if the term "specialist knowledge" is not clear, the statement contains the verifiable factual core for the target audience that the plaintiff does not have many years of professional experience and/or training through extensive practice and well-founded theoretical knowledge in the field of job placement. 52 This factual core is not inaccurate according to the plaintiff's statements. The plaintiff merely states that he was a professor at the Faculty of Business Administration at T. University and was the long-term coordinator for T. University's Iran activities. Since 2008, he has visited Iran frequently and is familiar with the cultural and institutional conditions in Iran and the situation on the German labor market. In addition, in his role as a university lecturer, he has also supervised MBA students from Iran for years. These statements do not indicate that he has specific specialist knowledge in job placement - acquired either through training or many years of practical experience - even though he may have knowledge and experience in related fields that are useful for such activities. 53 To the extent that the statement also calls the plaintiff's professional suitability into question, this is a value judgment that requires a comprehensive balancing of the interests protected by the constitution (cf. BVerfG GRUR 2013, 1266 - Winkeladvokat), which is why there is no easily affirmative violation of personal rights. 54 dd) The statement – which does not directly concern the plaintiff personally, but only W. GmbH – “The catastrophe seems to be much greater when we find that the company does not exist at all and the address it gives on its website actually belongs to an insurance company” cannot easily be qualified as a violation of personal rights. 55 On the one hand – since the plaintiff is only indirectly affected – a complicated legal review is necessary with regard to his standing to sue. It must be taken into account that a correspondingly close relationship between the plaintiff and W. GmbH has neither been stated nor is it apparent. Rather, the plaintiff is indisputably only part of the company’s “team”, but according to his own statement does not play a representative role, since it is not he, but Mr. W. “who is active in the external representation of the company and […] also presents the company’s activities at events in Iran”. Nor is he the company’s managing director. Other circumstances from which it could be concluded that the plaintiff has a particularly close connection to W. GmbH have not been presented. In particular, his work for W. GmbH is not mentioned on his own website. Against this background, it is questionable whether the statements made about W. GmbH have a detrimental effect on the plaintiff's personality. 56 On the other hand, the overall context of the video shows that it does not deny the legal existence of W. GmbH, since the article itself - by explicitly referring to the commercial register entry elsewhere - assumes that W. GmbH is registered in the commercial register. The unbiased and reasonable average recipient therefore understands the contested statement to mean that it asserts as a core fact that the business operations of W. GmbH cannot be physically found at the address given on the website. This core of facts is not obviously incorrect, since W. GmbH is indisputably located in a shared office with the insurance company O. and shares its office space with it. 57 The conclusion reached in the article regarding the (physical) non-existence of the GmbH represents an expression of opinion that requires consideration. 58 ee) With regard to the statement “W. GmbH does not have a permit to provide employment in Germany. In order to be allowed to do this in Germany, however, a permit from the Federal Employment Agency is a mandatory requirement, which W. GmbH does not have” the plaintiff is also not entitled to injunctive relief against the defendant. 59 On the one hand, a complicated legal review of the legal standing is also required with regard to this statement - since the plaintiff is only indirectly affected. Reference is made to the above statements under B.III.2.b) dd). 60 On the other hand, it is undisputed that the statement that W. GmbH does not have a permit to provide employment is correct in itself. The only issue between the parties is whether such a permit is legally required for the employment agency operated by W. GmbH or not. Since the assessment of this question requires a legal review that is not straightforward, this is also why there is no easily affirmative violation of personal rights. In addition, the assessment of whether W. GmbH's activities require a permit is a legal assessment, and thus an expression of opinion. "To find out the truth, we only need to check the entry in the commercial register of W. GmbH in Germany. We discover a lot of fraud and lies." is to be qualified as an expression of opinion in relation to W. GmbH, which is why the defendant is not liable as an indirect offender in this regard either. Reference is made to the above statements. 62 c) Against this background, there was no indication in the dispute of easily confirmed violations of the plaintiff's personal rights, on the basis of which the defendant could have easily determined that the content complained of was illegal. Therefore, even on the basis of the case law of the Federal Court of Justice on indirect liability for interference, the defendant was not required to evaluate the entire facts of the case, including obtaining a statement from the journalist Mr. J., which is why - as already explained - the Senate does not have to decide whether this fundamental necessity of conducting a "hearing procedure" by the host provider, as justified by the Federal Court of Justice, contradicts the requirements of the DSA. 63 d) In the present case, contrary to the legal opinion of the regional court, it cannot be assumed that the defendant did not meet its secondary burden of proof in procedural terms. Therefore, the actual circumstances presented by the plaintiff in relation to the complaints from the video in question cannot be considered as admitted under Section 138 Paragraph 3 of the Code of Civil Procedure. 64 On the one hand, as just explained, there is no indication of a clear violation of personal rights that would trigger the obligation to examine the material. 65 On the other hand, the journalist Mr. J., who uploaded the video in question to the YouTube channel A., is known to the shareholders of W. GmbH. Before filing the lawsuit, they had sent him several emails. In addition, the video had already been leaked to the managing director of W. GmbH. Unlike a rating portal – where the user can legitimately appear anonymously, which is why the rated doctor does not know him and cannot obtain the information required to identify him in this way, even if the portal operator had it, due to the lack of a right to information against the portal operator (cf. BGH, ibid., para. 38 et seq. – www.jamede.de) – the plaintiff does have options for further clarification of the facts with regard to the statements in the video. The Senate does see that the journalist did not respond to the emails sent to him. However, there is the possibility, for example, of taking legal action against him directly. The plaintiff does not argue that such action against the journalist, who lives in the USA, is unreasonable. 66 Finally, the factual allegations in dispute – unlike, for example, the alleged treatment contact of an anonymous user – are those from the plaintiff's sphere. The plaintiff has the best insight into W. GmbH, his tasks therein or his specialist knowledge in job placement. It is possible and reasonable for him to make a presentation on this. 67 Therefore, in the present case, the defendant has no secondary burden of proof with regard to the actual points of reference for the balancing decision to be made. 68 IV. Article 17 GDPR also does not give rise to a claim for injunctive relief by the plaintiff against the defendant. 69 1. In this regard, the Senate assumes in favour of the plaintiff that Article 17 GDPR can in principle give rise to a claim for injunctive relief by the data subject (cf. the question referred by the Federal Court of Justice in GRUR 2023, 1724 - application process). 70 The Senate also sees that the applicability of the GDPR remains unaffected by the Digital Services Act (Article 2 paragraph 4 letter g DSA). The protection of individuals when processing personal data should even be regulated solely by the provisions of Union law in this area, in particular by the GDPR (Recital 10 UA 3 S. 2 DSA). 71 Finally, the Senate assumes that the video uploaded by the journalist Mr. J. also contains personal data of the plaintiff within the meaning of Art. 4 No. 1 GDPR. 72 2. The Senate can leave open whether the operation of a video platform on which third parties can upload personal data constitutes processing within the meaning of Art. 4 No. 2 GDPR and whether the host provider is to be regarded as the controller within the meaning of Art. 4 No. 7 GDPR. This could be doubtful because the provider merely provides storage space for the data in the video uploaded by the user - unlike the data of users and visitors to the pages (cf. ECJ NJW 2018, 2537 para. 30 - ULD/Wirtschaftsakademie Schleswig-Holstein). The provider also does not automatically index the content like a search engine and make it available to Internet users in a specific order (cf. BGH GRUR 2020, 1331 para. 13 - right to be forgotten). 73 3. The question of whether processing has taken place can be left aside because, regardless of this, the plaintiff cannot assert a claim for injunctive relief against the defendant as host provider due to the circumstances mentioned below. 74 a) If a person concerned requests the operator of an Internet search engine to delist a listed content because of the (alleged) incorrectness of that content, the person concerned must prove that the information contained in that content is obviously incorrect or at least a part of that information that is not insignificant for the entire content is obviously incorrect (BGH GRUR 2023, 1218 para. 33 - Right to be forgotten II). The Federal Court of Justice has indeed abandoned the standard that exists for the liability of a search engine operator as an indirect infringer - according to which the operator must have become aware of an obvious and at first glance clearly recognizable violation of law on the basis of a specific indication - for the delisting claim under Art. 17 para. 1 GDPR in favor of a fundamentally equal balancing of the opposing fundamental rights (BGH ibid. para. 36 - Right to be forgotten II). However, the requirement of the previously required reference to an obvious and at first glance clearly recognizable violation of law ultimately corresponds to the now decisive requirement of relevant and sufficient proof that the information contained in the listed content is obviously incorrect (BGH a.a.O. Rn. 36 - Right to be forgotten II). 75 b) The application of this legal standard to the liability regime of search engine operators developed by the Federal Court of Justice under Art. 17 Para. 1 GDPR to the liability of host providers leads in the case in dispute that, due to the necessary balancing of the Union's fundamental rights, deletion cannot be demanded from the defendant. 76 On the one hand, the provider also applies that - unlike the content provider, who is directly responsible for the content he himself generates - like the search engine operator, he only provides easier access to this content and thus indirectly promotes its distribution. This different degree of influence on the accuracy of the content also means that the provider's liability under the GDPR is subject to a graduated liability characterized by different behavioral obligations. The platform provider is also only obliged to delist as a result of the violation of subsequent inspection and response obligations triggered by an initial report from those affected. 77 On the other hand, in the context of the balancing to be carried out under Art. 17 para. 3 lit. a GDPR, taking into account the right to freedom of expression and information, the provision of Art. 6 DSA - which explicitly regulates the question of the host provider's liability - cannot be ignored. The responsibility of the platform operator regulated therein with corresponding liability privileges in the form of a notice and take down procedure - which corresponds to the model of the Federal Court of Justice for the liability of the indirect disturber - must also apply to EU data protection law if the behavior of platforms is subject to it. Otherwise, the deliberately differentiating provisions of the DSA would be circumvented, since, if understood accordingly, every behavior of a host provider would also be data processing and would therefore justify a right to deletion under Art. 17 Para. 1 DSA. 78 c) Since - as already explained - the defendant cannot be held liable for a violation of personal rights as a so-called indirect infringer, the asserted claim for injunctive relief is also not justified as a delisting request in the matter. 79 The decision on costs follows from Section 91 Para. 1 Sentence 1 ZPO. 80 The ruling on provisional enforceability is based on Sections 708 No. 10, 713 ZPO. 81 The appeal is not admissible because neither the legal matter is of fundamental importance nor does the development of the law or the securing of uniform case law require a decision by the appeal court (Section 543 Para. 2 Sentence 1 ZPO). 82 The value in dispute for the appeal proceedings was determined in application of the principles of Sections 47 and 48 of the GKG and corresponds to the determination at first instance, which the parties did not object to.
