In a ruling dated December 8, 2016, the BGH (case reference: I ZB 118/15) decided that the amount of the fine depends on the financial circumstances of the infringer.
This applies in particular in the event that an unlawfully published video is repeatedly uploaded to a social network.

Video of a police officer published on a social network

The plaintiff in the proceedings is a police officer who was involved in a “Dügida” demonstration in Düsseldorf in spring 2015 while on duty.
The organizer of the demonstration uploaded a video to her Facebook page after the event in which the police officer could be seen.
The organizer also accused the officer of using “Stasi methods” and secretly questioning demonstrators in civilian clothes.

Deliberate disregard of the injunction

At the request of the police officer, the Düsseldorf Regional Court (decision of 21.05.2015 – 12 O 78/15) prohibited the organizer from distributing the video and mentioning the name of the police officer and his professional function.

The organizer did not comply with the regional court’s ban and did not remove the video or the description on her Facebook page.
As a result, the Düsseldorf Regional Court imposed a fine of EUR 4,000 on the organizer, or alternatively four days in prison.

Administrative fine of € 4,000 is inappropriate

In the organizer’s immediate appeal, she argued that the amount of the fine was unreasonably high.
She was unemployed and had difficulty earning her own living.
As a result, the court of appeal changed the amount of the fine to 750 euros.

However, the police officer appeals against this decision and demands that the previous decision be restored and an increased fine of 4,000 euros be imposed.

The amount of the fine must be commensurate with the economic situation of the infringer

The BGH considered the police officer’s application to be justified.
After all, the organizer had deliberately not removed the video with the comments from her website.
This constitutes an intentional violation of the injunction.
However, the fine of 4,000 euros was too high in view of the financial possibilities.

The penalty is similar in nature to a punishment and must therefore also comply with all criminal law principles.
The penalty must therefore be proportionate to the culpability and severity of the offense.
It is essential to do justice to the economic situation of the offender in order to punish offenders with different financial situations equally.

According to these principles, the fine for the unlawful publication of a video on social networks for unemployed persons should be reduced to 750 euros.
Since the organizer only receives Hartz IV, the daily rate should be reduced to 10 euros.
The seriousness of the offense, on the other hand, justifies 75 daily rates.