If a recipient of unsolicited email advertising finances the legal costs of his claim for injunctive relief via the spam crocodile service, this does not necessarily mean that the action is inadmissible due to abuse of rights. With this decision, the KG Berlin overturns the judgment of the LG Berlin (judgment of September 5, 2017 – 5 U 150/16). The KG clarifies that any extraneous interests of the service or the mediated lawyers are not attributable to the plaintiff.
Spam crocodile helps to combat advertising
When using Spam-Krokodil, private Internet users can simply forward the advertising addressed to them (advertising emails, fax or SMS advertising) to the operator of the Spam-Krokodil website. The operator then takes care of the legal proceedings independently and bears the cost risk of the action.
LG Berlin 2016: Use of the spam crocodile is an abuse of rights
In September 2016, the Berlin Regional Court ruled (case reference: 15 O 6/16) that the use of the spam crocodile was an abuse of rights. This means that all complaints by users of the spam crocodile are therefore inadmissible. The background to this is that an abuse of rights can always be assumed if someone only asserts their rights for “irrelevant objectives”. This includes, for example, obtaining legal fees, acting in a harassing manner or acting with the intention of causing damage.
At the time, the Berlin Regional Court based its decision on the factthat “the abusive nature of the claim can be inferred solely from the financier’s promise to the plaintiff to pursue the claim free of charge”. Accordingly, all actions in which the plaintiff does not bear the cost risk himself are to be regarded as abusive.
KG Berlin: Use of the spam crocodile not abusive
However, the judgment of the LG has now been overturned on appeal by the KG Berlin. The use of the spam crocodile was not an abuse of rights and was permissible. The reason given for the ruling is that, from the plaintiff’s economically reasonable point of view, it appears appropriate to prevent the infringement of personal rights without incurring any cost risk.
In addition, the KG clearly states that the plaintiff himself is not pursuing any extraneous interests. After all, he is solely concerned with ending the email advertising. Any extraneous interests of the lawyers could not be attributed to the plaintiff.