Official guidelines:
1. on the protective content of the general right of personality of Art. 2 para. 1 in conjunction with Art. Art. 1 GG and Art. 6 GG for YouTube videos and the balance with freedom of expression (Art. 5 GG).
2. children require special protection because they must first develop into responsible individuals. The area in which children are allowed to feel and develop free from public observation must therefore be more comprehensively protected than that of adults. When weighing up freedom of expression and general personal rights, it must be taken into account if a mother, who is primarily responsible for the development of her six-month-old child’s personality alongside the father, deprives her child of this freedom from public observation herself. In the case of a deliberate and intentional mixing of private and commercial activity on a YouTube channel, it is also to be expected that reactions could and would be characterized not only by enthusiasm, but also by concern for the child’s well-being, its defencelessness, its need for protection and the child’s inherent dignity, which is also protected by the Criminal Code.
3 In this respect, a critical statement that also uses strong and forceful expressions without having to put every word on the scales is also protected in principle. However, if it is no longer a matter of factual statements in the sense of unsparing criticism, but rather the attacked contribution is characterized by its lack of substance and is exhausted in insults, then defamation, which is not protected by freedom of expression, is in the foreground.
4. when awarding monetary compensation, it must also be taken into account that there was a period of almost two years between the infringements of personal rights at issue and the filing of the lawsuit, during which the dissemination of the contribution was not further objected to.
Tenor:
1. the defendant is ordered to pay the plaintiffs as joint creditors € 1,436.57 plus interest thereon at five percentage points above the prime rate of the European Central Bank since May 21, 2016.
(2) The defendant is ordered to refrain from making any statements in relation to the plaintiff re 1) and the plaintiff 2) verbatim or analogously and/or to disseminate and/or make accessible and/or have these acts carried out by third parties:
“A” is probably short for elastic vagina. Because this child will probably not turn into anything other than a slut or hooker. What a completely shitty mother you are if you seriously impose such a retarded Snapchat filter on your child. … Even in a family where she is beaten, the child will turn out better than with you.”
especially when this happens as in the video entitled “D”.
3. the defendant is threatened with the imposition of a fine of up to € 250,000.00 for each case of infringement of this obligation and, in the event that this cannot be collected, with imprisonment or detention for up to 6 months.
4. the remainder of the action is dismissed.
5. the costs of the proceedings are set off against each other.
6. the judgment is provisionally enforceable against security amounting to 110% of the amount to be enforced in each case.
Facts:
The plaintiff (1) operates a YouTube channel “SW” in the “F” section, which currently has … subscribers and almost … million views of videos. She shares some of her private life with her viewers and informs them in videos about her everyday life with her recently born daughter A, plaintiff 2). Among other things, the defendant operates the YouTube channels “K” with currently … subscribers and “iK” with currently approx. … subscribers.
On April 30, 2016, the plaintiff 1) published a video with the title “B-U: A is 6 months old”. This video was made publicly accessible to users with the thumbnail image reproduced below:
A few days later, on 6 May 2016, the defendant published his own video entitled “D” on his channel under the URL “https://www.youtube.com/B”. This video has a total running time of 3 minutes 17 seconds. In this video, the defendant faded in the preview image for a duration of 22 seconds at a running time of 1 minute 4 seconds and commented on it as follows:
“8th place
B-U A is 6 months old.
A is probably short for elastic vagina. Because this child is unlikely to become anything other than a slut or hooker. What a completely shitty mother you are if you seriously impose such a retarded Snapchat filter on your child. If I worked at the youth welfare office, I would take the child away from you straight away. Even in a family where she is beaten, the child will turn out better than with you.”
Within just 3 days, this video was viewed almost 115,000 times and commented on over 1,250 times.
Immediately after becoming aware of the content of the video, the plaintiff 1) contacted a lawyer, her legal representative, in her own right and as the legal representative of her underage daughter, the plaintiff 2). Three days after the initial publication, the lawyer demanded that the defendant refrain from making these statements in a letter dated May 9, 2016 in the name and on behalf of the plaintiffs. As part of the warning letter, the defendant was requested to submit a cease-and-desist declaration with a penalty clause by 17.05.2016, a claim for monetary compensation totaling € 5,000.00 and an amount of € 1,524.15 with a payment deadline of 20.05.2016.
The defendant did not initially respond to the plaintiffs. However, the defendant initially took the offending video entitled “D” offline.
On 4 June 2016, more than two weeks after the cease-and-desist period had expired, the plaintiff 1) discovered that the defendant had again posted a video entitled “F” with a running time of 10 minutes 7 seconds on the YouTube channel “iK”, which he also operated, under the URL “https://www.youtube.com/E”, in which the statement complained of was repeated.
In this video, with reference to the warning letter dated 09.05.2016 and the statement objected to in the letter with reference to the video “B-U A is 6 months old” at a running time of 0:45 seconds, it literally states:
“So first of all, of course, here’s what I said.
So here, A is probably short for elastic vagina. Because this child is unlikely to become anything other than a slut or hooker. Well, of course you can say that. also this
What a completely shitty mother you are if you seriously force such a retarded Snapchat filter on your child…
In any case, I don’t think it’s bad, because I’d rather have a girlfriend who has an elastic vagina than one who has a completely tense one.”
In addition, the plaintiff 1) established that since 14 May 2016, the defendant had again made a video publicly accessible under the title “H” on the YouTube channel “K” operated by him under the URL “https://www.youtube.com/G”. In this video, the defendant again used the thumbnail and commented on it as follows at a running time of 1 minute 31 seconds for 6 seconds:
“8th place
B-U A is 6 months old.
A is probably short for absolutely nothing. Because jokes like that aren’t funny at all. You don’t make jokes about elastic vaqinas. She will have a totally tight and cramped vagina. And that’s much better than an elastic one. But what kind of not-so-good mom are you if you push your newborn baby in front of the camera your whole life to get clicks! For clicks! …” .
In a letter from a lawyer dated 30.05.2016, the defendant was again requested to refrain from making these statements and to submit a cease-and-desist declaration with a penalty clause by 03.06.2016. The assertion of further monetary compensation was considered to be settled subject to the payment of the compensation payment asserted in the letter dated 09.05.2016. In addition, the defendant was requested to reimburse legal costs in the amount of € 1,524.15.
The defendant did not respond to the warning. However, on 1 June 2016, he signed the cease-and-desist declaration and declaration of obligation with penalty clause attached to the warning letter dated 9 May 2016 and sent it to the plaintiff’s lawyer.
The declaration to cease and desist included refraining from making and/or disseminating and/or making publicly accessible any statements in relation to the plaintiffs:
“8th place
B-U A is 6 months old.
A is probably short for elastic vagina. Because this child is unlikely to become anything other than a slut or hooker. What a completely shitty mother you are if you seriously impose such a retarded Snapchat filter on your child. If I worked at the youth welfare office, I would take the child away from you straight away. Even in a family where she is beaten, the child will turn out better than with you.”
In a letter dated June 3, 2016, sent in advance by email, the signatory confirmed to the defendant that he had received the declaration of discontinuance and undertaking “in accordance with what was requested in our warning letter dated May 9, 2016”.
After the defendant continued to publish the statement (thumbnail) mentioned in the cease-and-desist declaration on YouTube after submitting the cease-and-desist declaration, the plaintiff’s lawyer asserted the forfeiture of a contractual penalty “with reference to the cease-and-desist agreement concluded between you and our clients on June 1, 2016, the conclusion of which we expressly confirmed to you in our letter dated June 3, 2016” in the total amount of € 3,000. At the same time, he again requested the defendant to submit a further cease-and-desist declaration with a penalty clause, as the risk of repetition was obviously not excluded by the defendant’s cease-and-desist declaration of 1 June 2016.
In a letter from his lawyer dated June 17, 2016, the defendant had the asserted claims rejected on the merits and contested the “two declarations of intent made on June 1, 2016 to conclude a (modified) cease-and-desist agreement” due to an error in content. In the same letter, he sought an amicable settlement. No payments were made by the defendant.
More than 1 year and 8 months later, the plaintiffs filed a lawsuit on March 13, 2018.
You present:
With the application under point 1), the plaintiff 1) is claiming monetary compensation at the discretion of the court for a serious violation of personal rights, which should not be less than € 2,500.00. The statements disseminated on the Internet constitute an insult under criminal law, which disparages the plaintiff 1) and degrades her in public. The plaintiff 1) is denied any capacity as an educable mother and placed on the level of violent parents who abuse their children in a criminally relevant manner and called “shitty mother”. The defendant’s defamation was carried out worldwide via the YouTube platform. In the present case, the sole purpose of the statements was to discredit and disparage the plaintiff 1) on the internet. The degree of culpability as well as the defendant’s persistent interest in damaging the reputation of the plaintiff 1) is made clear by the audacity to publish the statements again worldwide in the context of another video after removal on 26.05.2016. To make matters worse, the private and intimate sphere of the plaintiff 1) was affected in the present case. The insults affect the private sphere of the plaintiff 1). They are likely to cause lasting damage to the public reputation of the plaintiff 1).
Plaintiff 2) is also entitled to monetary compensation of at least € 2,500.00 against the defendant at the discretion of the court. The particular reprehensibility here results in particular from the fact that it is a minor toddler who is not able to defend herself against the hostility on the Internet. The defendant had chosen a child in need of protection as the victim of his mockery and misused the child’s name. In this respect, it also appears particularly reprehensible that the child has not given any comprehensible reason for the aggressive defamation by the defendant and is being seriously and globally defamed via the Internet without any action on his part.
In addition, the plaintiffs are entitled to the contractually agreed contractual penalty of € 1,500.00 each against the defendant. He had made the statement quoted in the cease-and-desist declaration of 01.06.2016 publicly accessible on the Internet verbatim, at least as late as 04.06.2016. The amount of the contractual penalty of at least € 1,500.00 per plaintiff is also appropriate in the present case and does not violate principles of equity, as the contractual penalties usually considered appropriate in cases of statements are generally between € 5,000.00 and € 50,000.00.
The plaintiffs demand the reimbursement of their necessary legal costs for the extrajudicial activity, as well as the omission of the defamatory statements. He had no legal grounds for contesting the cease and desist agreement. If the party obliged by the submission subsequently only unilaterally renounces its declaration to cease and desist, this again constitutes a risk of first infringement, insofar as it means the termination of the will to cease and desist. Moreover, since his termination, the defendant has repeated the behavior that he had promised to refrain from. The video is merely provided with the addition [REUPLOAD].
The plaintiffs request,
1. the defendant is ordered to pay the plaintiff 1) monetary compensation at the discretion of the court, but at least € 2,500.00, plus interest at a rate of five percentage points above the prime rate of the European Central Bank since 20.05.2016.
2. the defendant is ordered to pay to the plaintiff 2), for the attention of the plaintiff 1) as legal representative, monetary compensation at the discretion of the court, but at least € 2,500.00, plus interest of five percentage points above the prime rate of the European Central Bank since 20.05.2016.
3. the defendant is ordered to pay the plaintiffs re 1) and 2) a contractual penalty at the discretion of the court, but at least € 1,500.00 per plaintiff plus interest of five percentage points above the prime rate of the European Central Bank since June 17, 2016.
4. the defendant is ordered to pay to the plaintiffs as joint creditors € 4,397.29 plus interest in the amount of five percentage points above the prime rate of the European Central Bank from an amount of € 1,524.15 since 20.05.2016, from an amount of € 1,436.57 since 10.06.2016 and from an amount of € 1,436.57 since 17.06.2016
5) The defendant is ordered to refrain from making any statements in relation to the plaintiff re 1) and the plaintiff 2), either verbatim or in spirit, and/or to disseminate and/or make accessible such acts and/or to have such acts carried out by third parties:
“8th place
B-U A is 6 months old.
A is probably short for elastic vagina. Because this child is unlikely to become anything other than a slut or hooker. What a completely shitty mother you are if you seriously force such a retarded Snapchat filler on your child. If I worked at the youth welfare office, I would take the child away from you straight away. Even in a family where she is beaten, the child will turn out better than with you. ‘ especially if this happens like in the video entitled “D” or “H
6) The defendant is threatened with the imposition of a fine of up to EUR 250,000.00 for each case of non-compliance with the claim under 5) and, in the event that this cannot be collected, an administrative detention order or an administrative detention order of up to 6 months.
The defendant claims,
dismiss the action.
He presents:
The challenged statement of the defendant as an exaggerated expression of opinion is not a seriously defamatory statement about the plaintiff 1), but a relentlessly sharp criticism, which, although it is to be described as abusive in its choice of words, remains a factual statement on the video of the plaintiff 1) under the title “B-U: A is six months old”.
For his contributions, he not only uses very direct youth language, but also an extremely direct approach to the topics in order to set himself apart from the “classic” media. The success of his channels is due in particular to the fact that he communicates social issues to young people in a direct way and repeatedly engages with Germany’s YouTube scene in an extremely critical manner and with what he describes as “black humor”. These young people, including the defendant, realize themselves by creating their own media content without having access to editorial offices, journalistic standards or the like. Typically, such a “young” generation breaks with the traditional, as has always been the case in societies. This is mainly done by transgressing supposed social taboos, both in terms of communication and in reality. This “rebellion against the elders” has always been a youth culture phenomenon, and is also noticeably expressed by musicians such as mods, punks, rappers, etc. Just as an ordinary/vulgar punk or rapper, according to classical standards, cannot be denied artistic freedom, this also applies to the defendant as a satirically active opinion leader in the new media. He does not deliberately disseminate sexist, offensive and racist content and does not attempt to cause disruption to other bloggers’ or YouTubers’ events at all costs. In his contribution, he makes it clear to his young viewers that YouTubers often publish videos for financial gain.
In the specific case, he objected to the display of a 6-month-old baby, in which the legal guardians were able to exercise the general right of personality without the person concerned even being able to develop an awareness of this. The display takes place on an extremely successful YouTube channel, which mainly deals with topics such as “k and b”. In addition, the plaintiff 2) is also depicted as a puppy using so-called Snapchat filters.
It shows its predominantly young viewers that the instrumentalization of a six-month-old child for the monetary interests of its own mother (new German: clickbaiting) entails incalculable risks. The re-upload also served the purpose of a substantive debate on the matter and thus the formation of opinion and not the persistent damage to the reputation of the plaintiff 1).
Should it nevertheless be assumed that the defamatory criticism was inadmissible, the plaintiff (1) should be charged with contributory negligence in causing the damage. The claimed minimum amount of € 2,500.00 by far exceeds appropriate compensation. To reduce the damage, it should also be taken into account that an innocent infant, now a small child, cannot pursue its own interest in compensation. He had affirmed his interest in compensation, which the plaintiffs did not address at all, so that he was surprised with this action after 2 years.
After the 1. warning, he immediately took the video offline. The subject of the 2nd warning was his dispute with the content of the 1st warning. 1st warning. For this purpose, he summarized and subjectively assessed the facts of the case. Under no circumstances did he want to commit further violations of personal rights.
A contractual penalty is not owed. No effective injunction agreement had been concluded between the parties, as the declaration of intent made by the defendant had been effectively contested. He was not aware of the significance of the content of his declarations – and not only limited to their legal consequences.
The court heard the case on November 23, 2018 and provided guidance at this hearing.
With regard to the further submissions of the parties, reference is made to the content of the exchanged written submissions together with the annexes and the minutes of the oral hearing.
Reasons for the decision:
The admissible action is partially justified.
I.
1. the plaintiffs are not entitled to payment of monetary compensation under Section 823 para. 1 BGB in conjunction with Art. 1 para. 1, Art. 2 para. 1 GG, § 823 para. 2 BGB in conjunction with § Section 185 StGB against the defendant (claims nos. 1 and 2). Due to the long delay of over 21 months after the defendant posted the incriminating statements on his YouTube channel in May 2016 before filing a lawsuit, there is no longer such a serious infringement of the plaintiffs’ right of personality in the necessary assessment of the overall circumstances of this individual case that the impairment cannot be satisfactorily compensated for in any other way than by monetary compensation.
a) The violation of the general right of personality justifies a claim for monetary compensation if it is a serious infringement and the impairment cannot be satisfactorily compensated for in any other way. Whether a violation of the right of personality is so serious that the payment of monetary compensation is necessary can only be assessed on the basis of the overall circumstances of the individual case. In particular, the significance and scope of the infringement, the cause and motive of the actor and the degree of fault must be taken into account (established case law, see BGH, judgment of 20.03.2012 – VI ZR 123/11, NJW 2012, 1788 mwN). In the required overall assessment, a cease and desist order must be taken into account because this and the associated threats of administrative remedies can influence and, in case of doubt, even exclude the claim for monetary compensation (see BGH, judgment of 24.11.2009 – VI ZR 219/08, BGHZ 183, 227). The granting of monetary compensation therefore depends not only on the severity of the interference, but rather on the overall circumstances of the individual case, according to which it must be assessed whether there is no other satisfactory compensation for the violation of personality rights (see BGH judgments of November 15, 1994 – VI ZR 56/94, BGHZ 128, 1; of November 24, 2009 – VI ZR 219/08, ibid. of December 17, 2013 – VI ZR 211/12, BGHZ 199, 237). Only the directly injured party can take action against infringements of the right of personality, not the person who is only indirectly affected by the remote effects of an infringement of another person’s right of personality, as long as these effects do not also qualify as an infringement of their own right of personality (BGH, judgment of 20.03.2012 – VI ZR 123/11 loc. cit.).
b) The descriptions of the plaintiff re 1) as a “completely shitty mother” from whom the “child must be taken away” and the classification in a hierarchy “below that of battering parents”, the comparison of the plaintiff re 2) with a female sexual organ and her future lifestyle as a “slut” or hooker” encroach on the plaintiffs’ general right of personality.
aa) The right set out in Art. 2 para. 1 in conjunction with Art. 1 para. 1 GG has been accorded a particularly high status in the case law of the Federal Constitutional Court. This applies in particular to its core of human dignity. The right of personality supplements the rights of freedom standardized in the Basic Law and guarantees the narrower personal sphere of life and the preservation of its basic conditions. It can therefore also be considered as a barrier to freedom of expression. The content of this right of personality is not generally and conclusively defined. The recognized contents include the right of disposal over the representation of one’s own person, social recognition and personal honour. An essential guarantee is protection against statements that are likely to have a detrimental effect on a person’s reputation, in particular their public image. The general right of personality protects the person in particular from falsifying or distorting representations that are of not inconsiderable importance for the development of the personality (see BVerfG, decision of June 13, 2007 – 1 BvR 1783/05, BVerfGE 119, 1-59 with further references). The protection of personal rights also extends to the relationships between parents and their children. Children require special protection because they must first develop into independent persons. The area in which children can feel and develop free from public observation must therefore be protected more comprehensively than that of adults. Parents are primarily responsible for the development of a child’s personality. Insofar as upbringing depends on undisturbed relationships with the children, the special protection of children’s fundamental rights does not merely have a reflexive effect in favor of the father and mother. Rather, the specific parental devotion to the children also falls in principle within the scope of protection of Art. 2 para. 1 in conjunction with Art. 1 para. 1 GG. The protective content of the general right of personality is then reinforced by Art. 6 para. 1 and 2 GG (BVerfG, decision of 13.06.2007 – 1 BvR 1783/05, BVerfGE 119, 1-59 mwN.).
bb) The court took the following statements by the defendant from the contested contribution:
aa. The starting point of the contribution at issue is the video of the plaintiff 1) with the title “B-U: A is 6 months old”, which was preceded by an image, a so-called thumbnail, and made publicly accessible to users. Thumbnail originally means “thumbnail” and is also used for “mini image” or “preview image”. A thumbnail is a small digital graphic that serves as a preview for a larger version. This preview image is divided into two halves. The left half shows three images, namely – from left to right – the plaintiff 2), the six-month-old child A of the plaintiff 1), then the plaintiff 1) herself and finally the plaintiff 2), whose face has been modified by the plaintiff 1) with a dog’s head – ears and snout. In the right half is the text: “B-U: A is 6 months old, SW, 5 hours ago. 39130 views. Hello my dears, little A is now 6 M, I have made a new baby update ur”.
bb. The defendant reacted to these images with explanatory text with a video using the preview image of the plaintiff re 1). First, he describes the order within his video as number 8 and repeats the heading from the preview image. With the first sentence – “A is probably short for elastic vagina” – he evaluates the name of the child and places it in a context with the female sexual organ. With the second sentence – “Because this child is unlikely to become anything other than a slut or a hooker” – he makes an evaluative prediction about the child’s future, which he relates to the female sexual organ and describes with the terms slut or hooker. The third sentence – “What kind of a completely shitty mother are you if you seriously impose such a retarded Snapchat filter on your child” – he seizes on the plaintiff’s 1) with a dog’s head and evaluates the role of the plaintiff to 2) and evaluates the role of plaintiff no. 1) as the mother of plaintiff 2). In the fourth sentence – “If I worked at the Youth Welfare Office, I would take the child away from you directly” – the defendant presents his ideas of an appropriate way of dealing with the plaintiffs and refers to the youth welfare procedure for measures in the event of endangerment of the child’s welfare and the child’s right to protection by the state. Finally, with the fifth sentence – “Even in a family where she is beaten, the child becomes more than with you” – he again assesses the position of the plaintiff re 1) as mother and her parental care for the welfare of the child, which he places in a hierarchy below that of battering parents.
cc. Each of these sentences therefore contains an assessment. At the same time, however, they also contain factual allegations such as the appearance of the child, her future activities or a possible profession, as well as the motive of the plaintiff (1) to drag the daughter entrusted to her into the public eye for purely commercial reasons.
c) Overall, these statements in the article at issue constitute value judgments to a decisive extent, despite the factual allegations expressed therein.
aa. Each statement complained of must be assessed in the overall context in which it was made. It must not be removed from the context in which it was made and viewed in isolation. It is essential for the classification as a factual allegation whether the statement can be checked for accuracy by means of evidence. A statement based on value judgments can also prove to be an assertion of fact if and to the extent that the addressee is simultaneously given the impression of concrete events encapsulated in the value judgment. The distinction between value judgments and statements of fact can be difficult in individual cases, especially because the two forms of expression are often combined and only together make up the meaning of a statement. In such cases, the concept of opinion must be understood broadly in the interests of effective protection of fundamental rights: Insofar as a statement in which facts and opinions are intermingled is characterized by the elements of opinion or opinion, it is protected as an opinion by the fundamental right. This applies in particular if a separation of the evaluative and factual content would nullify or distort the meaning of the statement. If, in such a case, the factual element were to be regarded as decisive, the protection of freedom of expression under fundamental rights could be significantly curtailed (see BVerfG, Chamber Decisions of 16.03.2017 – 1 BvR 3085/15, NJW-RR 2017, 1003; of 04.08.2016 – 1 BvR 2619/13, juris; BVerfGE 85, 1, 15 f; BGH, judgments of 12.10.1993 – VI ZR 23/93 – VersR 1994, 57, 58 of 30.01.1996 – VI ZR 386/94 -, BGHZ 132, 13-29). In the opinion of the ECtHR, conclusions about motives or possible intentions of third parties are value judgments rather than factual assertions accessible to evidence, whereby there must also be a sufficient factual basis for a statement equivalent to a value judgment (see ECtHR, 10.07.2014, 48311/10 ; BVerfG, Chamber decision of 04.08.2016 – 1 BvR 2619/13, juris).
bb. In the present case, as set out above, the defendant has made assessments in each of its sentences that are directed against the preview image made by the plaintiff re 1) to her video and her “displaying” of her daughter A, plaintiff 2), who is only six months old. Insofar as the assessments may also include factual claims, the comprehensive protection of fundamental rights for opinions remains in place. The fact that the child actually looks like a female sexual organ is obviously false. The same applies to the inferred future lifestyle of the plaintiff re 2) as a “slut” or “hooker”. It was clearly not the defendant’s intention to make such an absurd statement. Nor will anyone understand it in this sense. However, as soon as an attempt is made to determine the meaning of the sentence, the boundary is inevitably crossed into the realm of opinion and opinion and thus also into the battle of opinions. This follows from the lack of substance of the defendant’s statement in his contribution of 06.05.2016 (see BVerfG, decision of 22.06.1982 – 1 BvR 1376/79, BVerfGE 61, 1 with reference to BGHZ 45, 296). Insofar as the defendant asserts that the plaintiff re 1) is dragging the daughter entrusted to her into the public eye for purely commercial reasons, these are conclusions about the motives of the plaintiff 1) which, in the opinion of the ECtHR, which the court agrees with, are rather value judgments.
d) The above statements – with the exception of the fourth sentence on the removal of the child by the Youth Welfare Office – significantly impair the plaintiffs’ honor and social recognition. As insults, the statements are likely to have a detrimental effect on their reputation, in particular their public image.
Insult (Section 185 StGB) is an unlawful attack on the honor of another person through an intentional manifestation of disrespect or disregard. Honor is understood to mean a person’s claim to respect for their personality. Insult is therefore an attack on a person’s interest in not being treated and judged below their intrinsic value (BGHSt 1, 288).
By calling her a “slut” or “hooker”, the plaintiff re 2) is equated with a prostitute by analogy. This expresses a disregard for the girl’s honor, which fulfills the offense (see BGH, judgment of September 19, 1991 – 1 StR 509/91, NStZ 1992, 33). The same applies to her unprovoked description of a female sexual organ. The description of plaintiff 1) as a “completely shitty mother” constitutes dishonorable fecal language. The classification of plaintiff 1) in a hierarchy “below that of battering parents” also degrades the honor of plaintiff 1). In contrast, the fourth sentence, that the child must be taken away from the plaintiff 1), represents a critical examination of the representation of the child for commercial purposes by her mother. An interference with the plaintiffs’ right of personality is – as will be explained below – justified by the defendant’s freedom of expression.
e) The interference with the plaintiffs’ general right of personality is also unlawful with the contested sentences 1 to 3 and 5.
aa. 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, in which the particular circumstances of the individual case and the fundamental rights and guarantees of the European Convention on Human Rights concerned must be taken into account to guide interpretation. 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 side worthy of protection (see BGH, judgment of 17.12.2013 – VI ZR 211/12, BGHZ 199, 237 mwN). In the case in dispute, the interests protected by Art. 2 para. 1, Art. 1 para. 1 GG, Art. 8 para. 1 ECHR are in conflict with the plaintiffs’ interest in the protection of their personality and their good reputation guaranteed by Art. 5 para. 1 GG, Art. 10 ECHR with the defendant’s right to freedom of expression and media freedom.
bb. As already explained above, the incriminated statements fall within the scope of protection of the fundamental right of freedom of expression, as they are characterized by the elements of opinion and opinion and are therefore to be regarded as value judgments.
This fundamental right guarantees everyone the right to express their opinion freely: Everyone should be free to say what he thinks, even if he does not or cannot give verifiable reasons for his judgment. At the same time, the purpose of expressing opinions is to have an intellectual impact on the environment, to form opinions and to be convincing. For this reason, value judgments that always achieve a mental effect, namely to convince others, are protected by the fundamental right of Art. 5 para. 1 sentence 1 GG. The protection of the fundamental right relates primarily to the speaker’s own opinion. Opinions enjoy the protection of the fundamental right regardless of whether the statement is justified or unfounded, emotional or rational, valuable or worthless, dangerous or harmless. The polemical and offensive formulation does not in principle remove a statement from the scope of protection of the fundamental right. Abusive criticism, which as such is no longer protected by the fundamental right to freedom of expression and renders a balancing of interests obsolete, only exists under narrow conditions. Accordingly, even exaggerated or abusive criticism does not in itself make a statement defamatory. In addition, the statement must no longer focus on the discussion of the matter but on defamation of the person. Beyond polemical and exaggerated criticism, it must consist of personal disparagement. The essential characteristic of defamation is therefore a personal insult that completely overshadows the factual issue. Only then, in the sense of a rule presumption, can a weighing up of all the circumstances of the individual case be dispensed with in exceptional cases. An essential characteristic of defamation is a personal insult that completely overshadows the factual concern (see BVerfG, Chamber decision of 28.09.2015 – 1 BvR 3217/14, juris, with further references). The qualification of a defamatory statement as defamatory criticism and the resulting waiver of a balance between freedom of expression and honor regularly require consideration of the occasion and context of the statement. This can only be waived in exceptional cases if the defamatory content of the statement is so significant that it appears in every conceivable factual context as a mere disparagement of the person concerned and must therefore always be understood as personally defamatory vilification, regardless of its specific context, as may be the case with the use of particularly serious swear words – for example from fecal language (BVerfG, Kammerbeschluss vom 05.12.2008 – 1 BvR 1318/07, NJW 2009, 749).
cc. In the context of the balancing of interests, it must be taken into account that the plaintiff re 1) herself was the cause of critical comments on her behavior and on the appearance of her child.
(1) The plaintiff (1) not only posted a picture of her six-month-old child, who is particularly worthy of protection, on the internet, but also presented this picture on her YouTube channel, with which she pursues commercial interests. In doing so, she discloses her private life to her hundreds of thousands of subscribers, millions of whom view her videos. As explained above in the context of the reinforcing effect of the general right of personality under Article 6 of the Basic Law, children require special protection because they must first develop into responsible individuals. The area in which children can feel and develop free from public observation must therefore be more comprehensively protected than that of adults. As the mother, who is primarily responsible for the development of her then six-month-old daughter’s personality alongside her father, the plaintiff 1) has herself deprived her child, the plaintiff 2), of this freedom from public observation. With this mixture of economic activity with her own private life and that of her child, who is particularly worthy of protection, she is aiming for reactions from her target group. She may have hoped that these reactions would only be positive. However, she could not have expected that the reactions would be consistently positive when objectively evaluating her behavior. As a result, she could also assume that her deliberate and intentional mixing of private matters and her commercial YouTube channel would lead to critical comments about the “marketing” of her child.
(2) In addition, she has not only involved her six-month-old child in her activities as a YouTuber, but has also changed the image of the child in need of protection with a dog’s snout and ears. It was obvious that reactions could and would be characterized not only by enthusiasm, but also by concern for the child’s well-being, its defencelessness, its need for protection and the child’s inherent dignity, which is also protected by the Criminal Code. In this respect, a critical statement is protected, which in principle also allowed the defendant to use strong and forceful expressions without having to put every word on the scales. With his sentence “If I worked at the Youth Welfare Office, I would take the child away from you directly”, the defendant indirectly refers in a very direct way to the youth welfare procedure for measures in the event of endangerment of the child’s welfare or the child’s right to protection by the state and thus, according to the standards set out above, justifiably sets out his ideas of appropriate handling due to the behavior of the plaintiff 1). In contrast, however, the description of plaintiff 1) as a “completely shitty mother” is a term from the fecal language, and thus a defamatory statement by the defendant in the sense of defamatory criticism.
dd. It is also apparent from the overall context that the defendant was also concerned with the classification of the plaintiff re 1) in a ranking “below that of battering parents”, as well as with the comparison of the plaintiff to 2) with a female sexual organ and her future lifestyle as a “slut” or “hooker” was a personal insult that completely overshadowed the factual concern.
(1) In principle, the protection of the legal interest concerned – here: the plaintiffs’ right of personality – can and must recede all the more, the less it is a matter of a statement directly directed against this legal interest in private, namely in economic transactions and in pursuit of self-serving goals, but rather of a contribution to the intellectual battle of opinions on an issue that significantly affects the public by a person legitimized to do so; here the presumption speaks in favor of the admissibility of free speech, because otherwise the freedom of opinion, which is a prerequisite for a free and open political process, would be affected in its core (cf. BVerfG, decision of June 22, 1982 – 1 BvR 1376/79, BVerfGE 61, 1). Conversely, however, it follows from this that in the case of statements directed against the legal interest in commercial transactions and in pursuit of self-serving objectives, the protection of the legal interest concerned must be taken into account all the more in relation to freedom of expression.
(2) There was no previous dispute between the parties to which the defendant would have responded here. Rather, it is a matter of an expression of opinion in connection with the mutual commercial interests of the parties in operating their respective YouTube channels. The defendant himself proves this commercial interest by the continuous increase in his subscribers and his income development since 2016. It was solely his free decision to take up the completely value-free, commercial statements and representations of the plaintiff re 1) and to evaluate them on his YouTube channel. He was clearly interested in attracting the attention of his target group of “young people”, for whom – according to his own statements – he wanted to deal with the YouTube scene in Germany in an extremely critical manner and with “black humor” by his own standards, transgressing social taboos. However, with the exception of the fourth sentence on the removal of the child by the youth welfare office, the challenged statements by the defendant are no longer factual statements in the sense of unsparing criticism. Rather, the defendant’s challenged contribution of 06.05.2016 is characterized by its lack of substance and, with the exception of the fourth sentence, is exhausted in insults. The defendant’s focus was therefore clearly on defaming the plaintiffs in order to maintain the interest of his viewers in his YouTube channel and thus to be able to better expand his channel commercially. The factual examination of the commercialization of the plaintiff re 2) by her mother, the plaintiff re 1) completely fades into the background.
f) The defendant is fully responsible for the statements complained of, as he made them himself.
g) In the opinion of the court, however, the violation of the plaintiffs’ right of personality caused by the defendant’s contribution is not so serious that it requires or would be appropriate to award monetary compensation.
aa. As stated above, the culpable violation of the general right of personality gives rise to a claim for monetary compensation if it is a serious infringement and the impairment cannot be satisfactorily compensated for in any other way. Whether a violation of personality rights is so serious that the payment of monetary compensation is necessary can only be assessed on the basis of the overall circumstances of the individual case. In particular, the significance and scope of the infringement, i.e. the extent of the dissemination of the publication, the sustainability and continuation of the damage to the interests or reputation of the injured party, as well as the cause and motive of the actor and the degree of his fault must be taken into account. In addition, the special function of monetary compensation for violations of personality rights must be taken into account, which consists both in the satisfaction of the injured party for the interference suffered and also finds its objective justification in the idea that the personality right would otherwise remain without sufficient protection against significant impairments, i.e. the dignity and honor of the person would often remain without sanction with the consequence that the legal protection of the personality would atrophy. In addition, monetary compensation is intended to serve prevention (see BGH, judgments of 05.12.1995 – VI ZR 332/94, NJW 1996, 339 of 17.12.2013 – VI ZR 211/12, BGHZ 199, 237). In the interest of protecting freedom of expression, judicial sanctions for statements must also be limited to what is absolutely necessary to protect legal interests (BGH, judgment of 16.12.2014 – VI ZR 39/14, juris; OLG Düsseldorf, judgment of 13.08.2015 – 16 U 121/14, juris, and BVerfG, non-acceptance decision of 02.04.2017 – 1 BvR 2194/15, NJW-RR 2017, 879).
bb. The award of monetary compensation does not presuppose that the plaintiff 2) had her own perception as a small child due to the reporting at issue. This is because compensation for a violation of the general right of personality is not compensation for pain and suffering pursuant to § 253 para. 2 BGB, but rather a legal remedy that is based on the duty to protect under Art. 1 and 2 para. 1 GG. It finds its objective justification in the idea that without such a claim, violations of human dignity and honor would often remain without sanction, with the result that the legal protection of personality would atrophy (BGH, judgments of 09.07.1985 – VI ZR 214/83, BGHZ 96, 212; of 17.12.2013 – VI ZR 211/12, BGHZ 199, 237 with further references).
cc. As stated above, the defendant also used the infringement of the plaintiffs’ personality as a means to increase subscribers and thus to pursue its own commercial interests. Conversely, the same applies to the plaintiff re 1) in the use of her daughter, the plaintiff at 2) on her YouTube channel. The plaintiffs are not largely at the mercy of a ruthless forced commercialization of their personality without any tangible monetary compensation for the defendant, but have made themselves public for the purpose of commercialization by the plaintiff 1). 1) into the public eye.
dd. When assessing the overall circumstances, it must also be taken into account that more than 21 months have passed between the defendant’s published post and the filing of the lawsuit. Insofar as the plaintiffs reacted out of court on 09.05.2016 immediately after becoming aware of the defendant’s post of 06.05.2016 and warned the defendant through their lawyer with the request to refrain from the behavior, to submit a cease and desist declaration with a penalty clause and to pay monetary compensation in the total amount of € 5,000.00 by 20.05.2016, this warning was not followed by a judicial dispute for 21 months. The plaintiffs even informed the defendant by email on 8 June 2015 that they had instructed their lawyer to take legal action due to the fruitless expiry of the deadline and that the lawyer was now obliged to take legal action against the defendant without further hesitation if a further deadline expired without result by 15 June 2016. The deadline passed and none of the announcements were implemented. Instead, in a letter from his lawyer dated 17.06.2016, the defendant offered – without prejudice to the factual and legal situation and without acknowledging any legal obligation – an amicable settlement with removal and injunction obligations with regard to the contribution, as well as the payment of an appropriate lump sum compensation contribution, the latter also as a donation. At the same time, the defendant pointed out that, as a 21-year-old at the time, he had barely been able to make a living with the YouTube formats. As far as can be seen, the plaintiffs did not respond to this suggestion until the lawsuit was filed on March 13, 2018. Likewise, no criminal action was taken against the defendant by filing a criminal complaint with a criminal complaint for insult (Sections 185, 194 StGB). The plaintiffs have not given any reasonable reasons as to why they waited so long. In the present case, it is therefore crucial to take into account that there was a period of almost two years between the infringements of the plaintiffs’ personal rights in dispute and the filing of the lawsuit, during which the plaintiffs did not further object to the dissemination of the post (see on the omission of monetary compensation if the plaintiffs waited to take legal action: OLG Cologne, decision of 21.08.2017 – 15 W 47/17, juris judgment of 14.04.2016 – 15 U 193/15, juris). The plaintiffs also prove that the infringement of their personal rights is no longer as serious as the infringement of May 2016 by the fact that they state the value in dispute for the request for injunctive relief (claim 5) as € 13,500.00 in their complaint, but used € 20,000.00 as the basis at the time of the first warning letter of 9 May 2016. Both values were not contested by the defendant and are also shared by the court.
ee. Even if one assumes in favor of the plaintiffs, contrary to the above statements, that the defendant committed a serious violation of personality rights, there is in any case no unavoidable need for the award of monetary compensation. According to case law, monetary compensation is only to be awarded if a serious violation of personality rights cannot be satisfactorily compensated for in any other way, for example by referring to the ideal satisfaction provided by an injunction and the possibility of enforcing it in enforcement proceedings, etc. (cf. (see BVerfG, non-adoption decision of 02.04.2017 – 1 BvR 2194/15, NJW-RR 2017, 879). The state’s duty to protect individuals from threats to their personal rights by third parties, on which the claim for compensation in the event of a violation of personal rights is based, can then extend to the necessity of monetary compensation (BVerfG loc. cit.). However, this is not the case here: It is true that the statements that violate personality rights cannot be denied any widespread effect in public, as is the case with an insult in a personal environment that does not regularly require monetary compensation for this reason alone (cf. on insults in text messages: BGH, judgment of 24.05.2016 – VI ZR 496/15, NJW-RR 2016, 1136). However, on the other hand, retrievability on the internet is not a generally more or less mandatory criterion for an obligation to pay compensation (BGH, judgment of 17.12.2013 – VI ZR 211/12, BGHZ 199, 237). The injunctive relief obtained against the defendant with this judgment of the recognizing court excludes the claim for monetary compensation under the circumstances of the dispute. It is true that they cannot reliably prevent the further retrievability of the challenged post or parts thereof, even taking into account the threat of an order associated with them. It is generally known that a message posted on the Internet, even if it has been deleted by its author, can remain accessible for a certain period of time because it has been copied by third parties in the meantime and posted on a new website or made the subject of a blogger’s own post. Many users on the internet interpret the deletion of content as a result of injunctive relief as censorship and find “alternative routes” for dissemination (BGH, judgment of 17.12.2013 loc. cit.). However, in addition to the injunctive relief that has now been obtained, the long period of time that the plaintiffs allowed to elapse before they approached the court about the violation of their personal rights must also be taken into account in the overall assessment. They were already entitled to injunctive relief by way of an interim injunction in June 2016. However, they did not take this opportunity.
2. likewise, the defendant is not obliged to pay the plaintiffs a contractual penalty on the basis of an agreement (claim 3). The actions of the defendant cited here for forfeiture predate any alleged contractual penalty agreement.
a) The obligation to pay a contractual penalty is not established by a unilateral declaration by the debtor, but requires the conclusion of a contract between the creditor and the debtor. The general provisions on the conclusion of contracts apply to the conclusion of such a contract. The creditor who demands the submission of a specific cease-and-desist declaration with the warning letter is making the debtor a contractual offer within the meaning of Section 145 BGB. If the debtor submits this cease-and-desist declaration, this constitutes a declaration of acceptance. If a cease and desist declaration formulated by the debtor deviates from the cease and desist declaration demanded by the creditor, this constitutes a rejection of the offer to conclude a cease and desist agreement subject to penalty and at the same time a new offer pursuant to Section 150 para. 2 BGB (BGH, judgment of 04.05.2017 – I ZR 208/15, NJW 2018, 155).
b) In a letter dated May 9, 2016, the plaintiffs’ lawyer requested the defendant in the name of and on behalf of the plaintiffs to refrain from making the statements in question. As part of the warning, the defendant was requested to submit a cease-and-desist declaration with a penalty clause by 17.05.2016. This first cease-and-desist declaration initially only concerned the video “D” on the video site “https://www.youtube.com/B” (AHK 7, 11/13). The warning letter with the pre-formulated cease-and-desist declaration is to be understood as a contractual offer within the meaning of Section 145 BGB. According to the announcement in the warning letter dated 09.05.2016, the possibility of accepting the cease and desist agreement had expired; a cease and desist declaration received after this date should be considered “time-barred” according to the content of the warning letter (Section 148 BGB). Accordingly, the letter dated 01.06.2016 cannot have been an acceptance of the original offer; rather, it was a new offer to conclude a cease-and-desist agreement subject to penalty (Section 150 (1) in conjunction with Section 130 (1) BGB). This offer was also not accepted in accordance with § 151 BGB upon receipt by the plaintiff, in that the defendant had tacitly waived acceptance. There are no indications of such a waiver, which is subject to high requirements. The question of when a declaration of acceptance within the meaning of Section 151 BGB “is not to be expected according to custom” must always be decided according to the circumstances of the individual case. However, it is recognized as a general principle that an express acceptance is not required if the contractual offer merely brings advantages to the opposing party, such as the offer of a price reduction or the offer of a guarantee contract (see Palandt, BGB, Kommentar, 78th edition, 2019, note 2 b on Section 151 BGB with further references). It is obvious that the present declaration of discontinuance and undertaking does not merely benefit the defendant.
Accordingly, the plaintiffs had to declare their acceptance of the defendant’s offer of 1 June 2016 to him. No such declaration can be inferred from the lawyer’s acknowledgement of receipt dated 03/06/2016. The declaration – “we are pleased to confirm receipt of the declaration to cease and desist and undertaking signed and sent by you on 01.06.2016 in accordance with what was requested in our warning letter dated 09.05.2016” – only contains a reference to what was requested in the letter dated 09.05.2016 in addition to the confirmation of receipt. However, the letter dated 09.05.2016 expressly mentions the deadline of 17.05.2016 in addition to the declaration of discontinuance and undertaking attached to the letter. This requirement has not been met. Accordingly, in the context of the interpretation (Sections 133, 157 BGB) according to the wording, accompanying circumstances and mutual interests, it cannot be inferred from the letter dated 03.06.2016 that an offer of contract from the defendant is hereby accepted. For the first time in a letter dated 07.06.2016, the plaintiffs’ lawyer refers to a confirmation of an injunction agreement concluded on 01.06.2016. Irrespective of the fact that the injunction agreement could not have been concluded on 01.06.2016 with an alleged declaration of acceptance dated 03.06.2016, the lawyer refers to a contract there. With the receipt of the letter of 07.06.2016 by the defendant, however, it can now be assumed that the plaintiffs have accepted the defendant’s offer of 01.06.2016 (Section 147 (2) BGB).
c) The actions of the defendant asserted by the plaintiff as forfeited by way of the contractual penalty, which are asserted in the third claim, are all prior to 7 June 2016 as the earliest possible date of forfeiture of the contractual penalty, as can be seen from the submission with the specified date of 4 June 2016 and from the letters of 30 May 2016 and 7 June 2016. The contestation of the defendant’s declarations of 01.06.2016 by letter dated 17.06.2016 is therefore not relevant to the present legal dispute.
3) The plaintiffs are entitled to the reimbursement of legal fees in the amount of € 1,436.57 as compensation for the defendant’s unlawful interference with their personal rights.
a) When assessing the question of whether and to what extent the claim for damages to which the injured party is entitled also includes the reimbursement of lawyers’ fees, a distinction must be made between the internal relationship between the injured party and the lawyer acting on his behalf and the external relationship between the injured party and the tortfeasor. A claim for reimbursement to the extent asserted generally presupposes that the injured party is obliged to pay the invoiced costs in the internal relationship and that the specific legal activity in the external relationship was necessary and expedient from the relevant point of view of the injured party with regard to his specific situation in order to assert his rights. This is a genuine prerequisite for a claim that must be presented and proven by the injured party and not merely a significant circumstance within the scope of Section 254 BGB that limits the obligation to pay compensation and therefore falls within the burden of presentation and proof of the injuring party. The question of whether this requirement is met cannot be answered in general terms, but only by taking into account the respective circumstances of the individual case, in particular the question of whether there were justifiable objective reasons for pursuing the respective claims separately in the specific case or whether this merely caused additional costs (see BGH, judgment of 12.07.2011 – VI ZR 214/10, NJW 2011, 3657 with further references). An internal connection between different matters is to be affirmed if the different matters belong together when viewed objectively and taking into account the content of the success sought with the lawyer’s work (see BGH, judgment of 26.05.2009 – VI ZR 174/08, NJW-RR 2010, 428). In the present case, only the costs of the reminder of 09.05.2016 are necessary and appropriate for the protection of the rights of the plaintiffs. The infringement of the plaintiffs’ personal rights was recorded with this reminder and the request to cease and desist also corresponds to the request made in claim no. 5. Already after this out-of-court warning, the plaintiffs could have sought judicial assistance to enforce their interests, as they ultimately did with the action filed on 13.03.2018. The second warning dated 30.05.2016 covers the same facts, namely the incriminating statement by the defendant. Even if this warning relates to the publication on another YouTube channel operated by the defendant, the cease-and-desist declaration requested on 09.05.2016 covered any public dissemination. In this respect, the success sought by the plaintiffs was therefore achieved with the warning letter of May 9, 2016. Instead of issuing a further warning, they could now have taken the matter to court immediately due to the defendant’s continued infringement. The same applies to the third warning of 07.06.2016.
b) For the reimbursement of the lawyer’s fees for the reminder letter of 09.05.2016, an object value of € 20,000.00 is to be assumed, since for the reasons set out above a claim against the defendant for monetary compensation cannot be demanded. This is calculated as follows:
Business fee §§ 13, 14 RVG, No. 2300 VV RVG 1.6 (fee increase No. 1008 VV RVG by 0.3 due to two clients) € 1,187.20
Flat rate for post and telecommunications No. 7002 VV RV € 20.00
Subtotal € 1,207.20
19% VAT No. 7008 VV RVG 229.37 €
Total € 1,436.57
4) The plaintiffs’ claim for injunctive relief arises from §§ 1004 para. 1, 823 para. 1 BGB, Art. 1 para. 1, 2 para. 1 GG, § 823 para. 2 BGB in conjunction with § Section 185 StGB As already explained above, the defendant’s posts in dispute interfere with the plaintiffs’ general right of personality and are also not justified by freedom of expression. There is also the risk of repetition required for injunctive relief. If – as here – an unlawful infringement of the general right of personality of the person concerned has already occurred, there is a factual presumption that there is a risk of repetition (established case law see BGH, judgment of 4.12.2018 – VI ZR 128/18, juris, mwN). This presumption can be rebutted, but strict requirements must be met to rebut it. As a rule, this requires the submission of a cease-and-desist declaration with a penalty clause to the creditor of the cease-and-desist claim (see BGH, judgment of 4.12.2018 loc. cit.). After the defendant had the asserted claims rejected on the merits in a letter from his lawyer dated 17 June 2016 and contested his declarations of intent “dated 1 June 2016 on the conclusion of a (modified) cease-and-desist agreement” due to an error in content, the presumption of a risk of repetition was not rebutted by the cease-and-desist declaration dated 1 June 2016.
Since the imposition of an administrative remedy in the event of a breach of this obligation to cease and desist must be preceded by a threat (Section 890 (2) ZPO), the plaintiffs can also demand in connection with the claim for injunctive relief that this threat of the administrative remedy specified in Section 890 (1) ZPO be pronounced in the judgment. 1 ZPO is already pronounced in the judgment.
II.
The claim for interest arises from §§ 286, 288 BGB. The default occurred upon receipt of the reminder (Section 286 (1) BGB). However, the plaintiffs granted the defendant a performance period until 20.05.2016, which is why, in good faith, they could not expect to receive the requested amount before the expiry of the deadline they had set. This period also corresponds to a reasonable period for checking the justification of the plaintiffs’ claim. The decision on the costs follows from § 92 para. 1 ZPO, the decision on provisional enforceability follows from §§ 709, 108 ZPO.