Tenor
On the defendant’s appeal, the judgment of the 10th Civil Senate of the Court of Appeal of September 25, 2017 is set aside.
The case is referred back to the Court of Appeal for a new hearing and decision, including on the costs of the appeal proceedings.
By right.
Facts of the case
The plaintiff demands that the defendant refrain from making an identifying report available for retrieval in its online archive.
In the 1990s, the plaintiff, who worked as a tax consultant, worked for the parliamentary group of the German Social Union (DSU) in the state parliament of Saxony-Anhalt. On December 3, 1997, the defendant published an article reporting on criminal proceedings against the former chairman of the DSU parliamentary group A. and the plaintiff on charges of misappropriation of parliamentary group funds. This article is still available on the defendant’s website via an archive function. It has the following content, among others:
\”The incredible audacity of appearances Published on 1997-12-03 […]
Verdict against former parliamentary group leader of the German Social Union (DSU) expected tomorrow
[…] The now 44-year-old A. and his former parliamentary group managing director [Kläger] have been on trial since November on charges of embezzling parliamentary group funds – together, but against each other: in an attempt to blame each other for the incitement, the two became bitter enemies. The verdict will be handed down tomorrow; […] Senior public prosecutor […] speaks of ‘considerable audacity’ on the part of the two defendants. He considers it proven that A., who now lives off his wife’s income, helped himself generously to the faction’s coffers with the help of [des Klägers] between May 1992 and May 1993. \”This is taxpayers’ money\”, the public prosecutor said. In the end, the court limited itself to 15 of the 69 charges […] In total, senior public prosecutor […] added up the individual irregularities to a total loss for the state of 117,152 marks. At the beginning of the trial, it was still about 190000 marks, but many \”little things\” will not be heard by the court after the confession […] because they are irrelevant for the sentence. Senior public prosecutor […] sees the most serious abuse in the fact that a sham contract agreed by the defendants resulted in 5000 marks in consultancy fees being passed on to [Ehefrau des A.] every month for a year. No consideration was provided in return. [Ehefrau des A.] did not receive the money directly from the DSU parliamentary group, but as an alleged employee of the [klägerischen] tax consultancy firm. [Der Kläger] in turn invoiced the amount to the parliamentary group as a fee for his firm. This ‘order of magnitude’ of such fees is common, the defendants say during the trial. The senior public prosecutor noted with concern that in German parliaments, taxpayers’ money was apparently being used very generously in an uncontrolled manner when it came to consultancy contracts. It had been made ‘very easy’ for the defendants, pleaded senior public prosecutor […] and feared that similar behavior would be ‘opened up’ by insufficient controls. The public prosecutor’s office has requested a two-year suspended prison sentence for both defendants. [Der Kläger] is also to pay 50000 marks in restitution, A. 500 hours of community service.\”
In letters dated March 4 and 14, 2013, the plaintiff requested the defendant to delete his name.
The Regional Court dismissed the action with regard to the plaintiff’s main claim to delete his first and last name in the published article and, in accordance with the plaintiff’s alternative claim, ordered the defendant to refrain from reporting on the plaintiff in connection with the accusation made before the Regional Court of M. in 1997 in connection with the conviction of the chairman of the parliamentary group of the German Social Union A. by giving his full name, if this is done as on the defendant’s website at https://www.[…].html. In the appeal instance, the plaintiff requested in the alternative that the defendant be ordered to refrain from making the article available for retrieval on the defendant’s website in such a way that it is found by internet search engines by entering the plaintiff’s name and shown in the results lists. The Court of Appeal dismissed the defendant’s appeal. With the appeal allowed by the Court of Appeal, the defendant continues to pursue its claim for dismissal.
Reasons
I.
In the opinion of the Court of Appeal, the plaintiff is entitled to the injunctive relief awarded pursuant to § 823 para. 1, § 1004 para. 1 sentence 2 BGB by analogy in conjunction with Art. 1 para. 1, Art. 2 para. 1 GG. By keeping the article in the online archive, the defendant had not continued any inadmissible identifying reporting. It was therefore necessary to decide whether, under what conditions and with what provisos an originally lawful report could subsequently be countered with a request for injunctive relief. With time, the perpetrator’s interest worthy of protection in being spared a reactualization of his misconduct increases. In the case in dispute, even some 25 years after the offense was committed and some 20 years after the current reporting on the court proceedings, which had not yet ended at the time, the original report continued to be updated immediately with full attribution of names without any effort or time-consuming research simply by entering the plaintiffs’ first and last names via the usual search engines. It can be assumed without further ado that it is common practice nowadays to obtain information about these persons on the Internet when initiating business contacts with providers of higher-level services, with whom a relationship of trust is generally required. This applies all the more if – as in the present case – an interested party is referred to the defendant’s article on the first page by entering the plaintiff’s name, for example on \”Google\”, and the plaintiff is mentioned in connection with the allegation of embezzlement, without reference to the fact that the article is twenty years old. The latter and the details of the article would only become apparent after clicking on the search result. The reader is then informed that it is a report on ongoing criminal proceedings. This serious interference is currently no longer offset by any overriding or equivalent right of the defendant to unhindered provision of the information through individualized reporting in relation to the plaintiff. The defendant is a disturber and cannot refer the plaintiff to a claim against the search engine operators. It is also not unreasonably impaired in its freedom of the press by the fact that it is obliged to check whether an old report can remain unchanged in the online archive or whether it should be modified with regard to the protection of personality rights.
The tenor of the claim for injunctive relief was not to be amended in accordance with the alternative claim formulated by the plaintiff in the appeal. The alternative application submitted within the extended time limit for the response to the appeal was to be regarded as a cross-appeal. No modification of the injunction was made because the injunction formulated in the alternative application was not considered to be a measure that was less burdensome for the defendant and therefore more in line with the principle of proportionality, but rather an aliud that neither corresponded to the plaintiff’s primary legal protection objective nor took the defendant’s defense into account. This is because the defendant itself does not argue that there are less onerous measures available that it can implement. Rather, the request to prevent access to archives by means of technical solutions is at best an alternative to the realization of the protection of personal rights. If the question arose as to whether and in what way it was technically feasible to prevent search engines from finding the data, the enforceability for the plaintiff, who had primarily opted for a more extensive claim, was affected. In addition, a supposedly less onerous injunction, the implementation of which cannot yet be guaranteed technically due to the large number of access options, would ultimately also disproportionately affect the defendant, namely if, in the absence of a technically reliable solution, for legal reasons as well as in fact, the obligation arises to restrict the archive as such or the access options for external users much more drastically than owed in the form of a reaction that goes beyond the actual condemnation.
II.
The contested judgment does not stand up to appellate review.
1. the assumption of the Court of Appeal that the continued availability of the article identifying the plaintiff for retrieval is unlawful and justifies the claim asserted by him for injunctive relief against the identifying reporting in the defendant’s online archive is not supported by the findings made.
a) The Court of Appeal rightly assumed that making the article available for retrieval on the Internet constitutes an encroachment on the scope of protection of the right to privacy protected by Section 823 para. 1, § 1004 BGB in conjunction with Art. 2 para. 1, Art. 1 para. 1 of the German Constitution. Reporting on criminal proceedings while naming the defendant inevitably impairs his right to protection of his personality and his good reputation because it makes his possible misconduct public and negatively qualifies his person in the eyes of the addressees. This applies not only to the active transmission of information by the media, as occurs in the context of conventional reporting in the daily press, radio or television, but also when – as in the case in dispute – content identifying the offender is merely made available for retrieval on a passive presentation platform on the Internet. In principle, this content is accessible to any interested internet user (see Senate, judgments of February 16, 2016 – VI ZR 367/15, NJW-RR 2017, 31 para. 15; of November 13, 2012 – VI ZR 330/11, AfP 2013, 54 para. 8; of October 30, 2012 – VI ZR 4/12, NJW 2013, 229 para. 9; of May 8, 2012 – VI ZR 217/11, NJW 2013, 229 para. 9; of May 8, 2012 – VI ZR 217/11, NJW 2013, 229 para. 9). May 2012 – VI ZR 217/08, NJW 2012, 2197 para. 34; of February 1, 2011 – VI ZR 345/09, NJW 2011, 2285 para. 11; of February 9, 2010 – VI ZR 243/08, NJW 2010, 2432 para. 13; of December 15, 2009 – VI ZR 227/08, BGHZ 183, 353 para. 10; in each case with further references; see also ECtHR, judgment of June 28, 2018 – 60798/10 and 65599/10, para. 86 et seq. [excerpted translation in NLMR 2018, 257]).
b) The Court of Appeal also correctly assumed that the plaintiff’s application for injunctive relief could be decided on the basis of a consideration of his right to protection of his personality and respect for his private life under Art. 2 para. 1, Art. 1 para. 1 GG, Art. 8 para. 1 ECHR with the right under Art. 5 para. 1 GG, Art. 10 ECHR (see Senate, judgments of February 16, 2016 – VI ZR 367/15, NJW-RR 2017, 31 para. 18; of November 13, 2012 – VI ZR 330/11, AfP 2013, 54 para. 9; of October 30, 2012 – VI ZR 4/12, NJW 2013, 229 para. 10; of May 8, 2012 – VI ZR 217/08, NJW 2012, 2197 para. 35; of February 1, 2011 – VI ZR 345/09, NJW 2011, 2285 para. 12; of February 9, 2010 – VI ZR 243/08, NJW 2010, 2432 para. 14; of December 15, 2009 – VI ZR 227/08, BGHZ 183, 353 para. 11; in each case with further references; ECtHR, judgments of June 28, 2018 – 60798/10 and 65599/10, para. 89 et seq.; of February 7, 2012 – 39954/08, NJW 2012, 1058). Due to the nature of the general 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 affected must be taken into account in order to guide interpretation. The interference with personal rights is only unlawful if the interests of the person concerned outweigh the interests of the other party that are worthy of protection (see Senate, judgments of June 12, 2018 – VI ZR 284/17, NJW 2018, 3509 para. 18; of April 10, 2018 – VI ZR 396/16, NJW 2018, 2877 para. 19; of May 2, 2017 – VI ZR 262/16, NJW-RR 2017, 1516 marginal no. 22; of November 29, 2016 – VI ZR 382/15, NJW 2017, 1550 marginal no. 15; of February 16, 2016 – VI ZR 367/15, NJW-RR 2017, 31 marginal no. 18; of November 13, 2012 – VI ZR 330/11, AfP 2013, 54 marginal no. 9; in each case with further references).
c) However, the findings made do not support the assumption that the continued availability of the article identifying the plaintiff for retrieval is unlawful.
aa) Various criteria have been developed in case law that provide guidelines for the specific balancing process (see Senate, judgments of November 13, 2012 – VI ZR 330/11, AfP 2013, 54 para. 11 et seq. October 2012 – VI ZR 4/12, NJW 2013, 229 para. 12 et seq.; BVerfG, AfP 2009, 365 para. 17; AfP 2009, 480 para. 61 et seq.; AfP 2010, 365 para. 27 et seq.; AfP 2012, 143 para. 36, 39; ECtHR, judgment of June 28, 2018 – 60798/10 and 65599/10; in each case with further references). Accordingly, the press may not, in principle, be relegated to anonymous reporting in order to fulfil its duties (see Senate, judgments of 13 November 2012 – VI ZR 330/11, AfP 2013, 54 para. 11; of 30 October 2012 – VI ZR 4/12, NJW 2013, 229 para. 12; BVerfG, AfP 2009, 46 para. 12; AfP 2012, 143 para. 39; ECtHR, judgment of 28 June 2018 – 60798/10 and 65599/10, para. 105). Pointing out misconduct – including that of specific individuals – is one of the legitimate tasks of the media (see Senate, judgments of November 13, 2012 – VI ZR 330/11, AfP 2013, 54 para. 11; of October 30, 2012 – VI ZR 4/12, NJW 2013, 229 para. 12; BVerfG, AfP 2012, 143 para. 39; ECtHR, judgment of June 28, 2018 – 60798/10 and 65599/10, para. 105). In the case of factual reports, the balance between the conflicting interests depends on the truthfulness of the information. As a rule, true statements of fact must be accepted, even if they are detrimental to the person concerned, whereas untrue statements are not. However, a true statement can also violate the personal rights of the person concerned if it threatens to cause personal damage that is disproportionate to the interest in disseminating the truth. This may be the case, in particular, if the statements are likely to have a considerable broad impact and result in a particular stigmatization of the person concerned, so that they threaten to become the starting point for social exclusion and isolation (cf. Senate, judgments of November 13, 2012 – VI ZR 330/11, AfP 2013, 54 para. 11; of October 30, 2012 – VI ZR 4/12, NJW 2013, 229 para. 12; BVerfGE 97, 391, 404 f.; BVerfG, AfP 2009, 365 para. 17; ECtHR, judgment of June 28, 2018 – 60798/10 and 65599/10, para. 90 f.).
When weighing up the interest in information in relation to the conflicting protection of privacy, the subject matter of the reporting is of decisive importance. When reporting on a criminal offense, it must be taken into account that such an offense is part of current affairs, the communication of which is the task of the media. Die Verletzung der Rechtsordnung begründet grundsätzlich ein anzuerkennendes Interesse der Öffentlichkeit an näherer Information über Tat und Täter (vgl. Senat, Urteile vom 19. März 2013 – VI ZR 93/12, NJW 2013, 1681 Rn. 18; vom 13. November 2012 – VI ZR 330/11, AfP 2013, 54 Rn. 12; vom 30. Oktober 2012 – VI ZR 4/12, NJW 2013, 229 Rn. 13; vom 8. May 2012 – VI ZR 217/08, NJW 2012, 2197 para. 38; June 7, 2011 – VI ZR 108/10, BGHZ 190, 52 para. 19; February 1, 2011 – VI ZR 345/09, NJW 2011, 2285 para. 15; December 15, 2009 – VI ZR 227/09, NJW 2011, 2285 para. 15. December 2009 – VI ZR 227/08, BGHZ 183, 353 para. 14; in each case with further references; BVerfG, AfP 2009, 365 para. 18; AfP 2010, 365 para. 32; ECtHR, judgment of February 7, 2012 – 39954/08, NJW 2012, 1058 para. 96). This will be all the stronger the more the crime differs from ordinary criminality in terms of commission, severity or other special features (see Senate, judgments of March 19, 2013 – VI ZR 93/12, NJW 2013, 1681 para. 18; of October 30, 2012 – VI ZR 4/12, NJW 2013, 229 para. 19; of May 8, 2012 – VI ZR 217/12, NJW 2013, 229 para. 19). May 2012 – VI ZR 217/08, NJW 2012, 2197 para. 38; June 7, 2011 – VI ZR 108/10, BGHZ 190, 52 para. 19; February 1, 2011 – VI ZR 345/09, NJW 2011, 2285 para. 15; February 9, 2010 – VI ZR 243/08, NJW 2010, 2432 para. 17; December 15, 2009 – VI ZR 227/08, BGHZ 183, 353 para. 14; in each case with further references).
When weighing up the public’s interest in information in reporting against the inevitable impairment of the offender’s right to privacy, the interest in information generally deserves priority for current reporting on criminal offenses. This is because anyone who breaches the peace under the law must not only submit to the criminal sanctions imposed for this, but must also tolerate that the public’s interest in information, which he himself has aroused, is satisfied in the usual ways (cf. Senate, judgments of May 8, 2012 – VI ZR 217/08, NJW 2012, 2197 para. 39; of June 7, 2011 – VI ZR 108/10, BGHZ 190, 52 para. 19; of February 1, 2011 – VI ZR 345/09, NJW 2011, 2285 para. 16; of February 9, 2010 – VI ZR 243/08, NJW 2010, 2432 para. 18; of December 15, 2009 – VI ZR 227/08, BGHZ 183, 353 para. 15; in each case with further references). However, the impairment of the right of personality must be proportionate to the seriousness of the misconduct and its other significance for the public (see Senate, judgments of November 13, 2012 – VI ZR 330/11, AfP 2013, 54 para. 12; of October 30, 2012 – VI ZR 4/12, NJW 2013, 229 para. 13; in each case with further references; BVerfG, AfP 2006, 354, 355; AfP 2009, 365 para. 20). It is also important for the assessment whether the reporting serves solely to satisfy the public’s curiosity or whether it contributes to the formation of opinion in a democratic society and the press therefore fulfills its function as a “watchdog of the public” (cf. Senate, judgment of October 30, 2012 – VI ZR 4/12, NJW 2013, 229 para. 13, mwN; BVerfGK 1, 285, 288; BVerfG, AfP 2006, 354, 356; ECtHR, judgments of February 7, 2012
– 39954/08, NJW 2012, 1058 para. 79, 90; of June 28, 2018 – 60798/10 and 65599/10, para. 111).
If the investigation proceedings are still ongoing, the presumption of innocence in favor of the person concerned, which is based on the rule of law and recognized in Art. 6 para. 2 ECHR must be taken into account. This presumption protects the accused from disadvantages that are equivalent to a guilty verdict or punishment, but which were not preceded by a due process of law procedure for the determination of guilt and assessment of punishment (see Senate, judgment of October 30, 2012 – VI ZR 4/12, NJW 2013, 229 para. 14; BVerfGE 74, 358, 371; 82, 106, 114 f.). Accordingly, when weighing up the conflicting interests, the risk must also be taken into account that the public equates the mere initiation of investigative proceedings with proof of guilt and therefore “leaves something hanging” in the event that the investigative proceedings are later discontinued or the accused is acquitted (cf. Senate, judgment of October 30, 2012 – VI ZR 4/12, NJW 2013, 229 para. 14; BVerfG, AfP 2006, 354, 355; AfP 2009, 46 para. 15; AfP 2009, 365 para. 20; ECtHR, judgment of February 7, 2012 – 39954/08, NJW 2012, 1058 para. 96). Since it is of considerable importance in the context of the assessment whether a factual allegation was admissible at the time of its initial publication, it may be relevant whether the requirements for reporting on suspicion were met (see Senate, judgment of February 16, 2016 – VI ZR 367/15, NJW-RR 2017, 31 para. 20 et seq.).
As time passes since the criminal proceedings and after the public’s current interest in information has been satisfied, the interest of the person concerned in being spared a reenactment of their misconduct becomes increasingly important (cf. Senate, judgments of November 13, 2012 – VI ZR 330/11, AfP 2013, 54 para. 13; of October 30, 2012 – VI ZR 4/12, NJW 2013, 229 para. 15; of May 8, 2012 – VI ZR 217/08, NJW 2012, 2197 para. 40; BVerfGE 35, 202, 233; BVerfG, AfP 2006, 354, 355; AfP 2009, 365 para. 21; in each case with further references). The general right of personality offers protection against the media dealing with the person of the offender for an unlimited period of time. If the act giving rise to the public interest has received the necessary reaction from the community with the conclusion of the criminal proceedings and if the public has been sufficiently informed about this, continued or repeated interference with the personal rights of the person concerned cannot be justified without further ado in view of his interest in reintegration into the community. However, this does not mean complete immunization from the unintentional presentation of events relevant to personality (see Senate, judgment of 13 November 2012 – VI ZR 330/11, AfP 2013, 54 para. 13; BVerfGE 35, 202, 233; BVerfG, AfP 2009, 365 para. 21). The general right of personality does not give the person concerned an unrestricted right to no longer be confronted with their misconduct in public at all (see Senate, judgments of November 13, 2012 – VI ZR 330/11, AfP 2013, 54 para. 13; of October 30, 2012 – VI ZR 4/12, NJW 2013, 229 para. 15; of May 8, 2012 – VI ZR 217/08, NJW 2012, 2197 para. 40, with further references). Even serving time for the offense does not mean that an offender acquires the unrestricted right to be “left alone” with the offense. Rather, the decisive factor is always the extent to which the offender’s right of personality, including his interest in resocialization, is impaired by the reporting in the specific circumstances of the individual case (see Senate, judgment of 13 November 2012 – VI ZR 330/11). November 2012 – VI ZR 330/11, AfP 2013, 54 para. 13; BVerfG, NJW 2000, 1859, 1860; AfP 2009, 365 para. 21; ECtHR, judgment of December 7, 2006, complaint no. 35841/02, Österreichischer Rundfunk v. Austria, no. 68, ÖJZ 2007, 472, 473; in each case with further references). The intensity of the impairment of the right of personality also depends on the type and manner of representation, in particular the degree of dissemination of the medium (see Senate, judgments of November 13, 2012 – VI ZR 330/11, AfP 2013, 54 para. 13; of February 9, 2010 – VI ZR 243/08, NJW 2010, 2432 para. 19).
bb) An overall assessment taking these principles into account is not possible on the basis of the findings made.
(1) It is true that the Court of Appeal correctly assumed that the identifying reporting was lawful at the time of its initial publication. The defendant was allowed to report on the main hearing of the criminal proceedings in the article by mentioning the plaintiff’s name. The public had an important information interest in the criminal proceedings against the plaintiff and the impairment of the plaintiff’s right of personality caused by the reporting was not disproportionate to the significance of his conduct for the public. This results first of all from the circumstances of the amount of the embezzled tax money and the commission of the crime by a member of the state parliament as a representative of the people, as well as specifically with regard to the plaintiff from his significant participation in the crime. In addition, according to the findings, the plaintiff had advised the parliamentary group on the basis of a contract and held a prominent position that enabled him to participate in the acts of embezzlement at the expense of the parliamentary group; he held a responsible position in state politics and was a public figure (see, for example, Senate, judgment of October 30, 2012 – VI ZR 4/12, NJW 2013, 229 para. 19 et seq.). Therefore, the Regional Court’s consideration that it could be left open whether the plaintiff had been formally appointed managing director of the parliamentary group, since a possibly incorrect description of his formal position would not give a reader of the article any misconceptions about the importance of the plaintiff, is also correct. Moreover, the article reports truthfully, in a factually balanced manner and – notwithstanding pointedly exaggerated formulations – with overall restraint about the main hearing of the criminal proceedings and background information that may be relevant for its understanding. As far as the criminal proceedings are concerned, the article is limited to a reproduction of the events in a public main hearing (see Senate, judgment of March 19, 2013 – VI ZR 93/12, NJW 2013, 1681 para. 27 ff.).
The fact that at the time of the initial reporting during the ongoing criminal trial there was only sufficient suspicion (Section 203 StPO) does not indicate otherwise. According to the factual findings of the Court of Appeal, the plaintiff did not doubt that the original reporting on the criminal proceedings was admissible. The objection on appeal does not demonstrate any factual submission that was ignored in the factual instances, according to which the accusation against the plaintiff was wrongly made (see Senate, judgment of February 16, 2016 – VI ZR 367/15, NJW-RR 2017, 31 para. 20 et seq.).
(2) However, on the basis of the findings made, the Senate cannot assess whether the interests of the defendant must take second place to the plaintiff’s interest in protection in the required comprehensive balancing of interests because the article is still available for retrieval by the defendant more than twenty years after its initial publication and can be found solely by entering the plaintiff’s first name and surname via Internet search engines.
The Court of Appeal derived the unlawfulness of the continued availability of the article for retrieval from the latter aspect. It based its decision primarily on the fact that the original reporting was immediately updated by entering the plaintiff’s first name and surname via the common Internet search engines and that the plaintiff was thereby significantly impaired. However, it remains open whether and in what way it is possible and reasonable for the defendant to merely prevent or restrict the findability of the article via internet search engines (see, for example, Paal/Hennemann, K&R 2017, 18; Trentmann, MMR 2016, 731; Sajuntz, NJW 2016, 1921, 1924; Mann, AfP 2014, 210; Höch, K&R 2015, 632; Feldmann, K&R 2015, 634; Bergt/Brandi-Dohrn/Heckmann/Wimmers, CR 2014, supplement to issue 7, 1 et seq.; Masing, Vorläufige Einschätzung der \”Google-Entscheidung\” des EuGH, https://verfassungsblog.de/ribverfgmasingvorlaeufigeeinschaetzungdergoogleentscheidungdeseugh/ [retrieved on January 10, 2019], under 8.c; von Pentz, AfP 2015, 11, 20 f.).
Contrary to the opinion of the Court of Appeal, in the case in dispute this aspect does not only concern the enforceability of the injunction obligation for the plaintiff, but already a balancing aspect. A conclusive weighting of the conflicting legal positions is not possible as long as it has not been clarified how the opposing interests can be balanced (practical concordance). Prohibiting the continued availability of the article for retrieval in the online archive would go beyond what is necessary to protect the rights of the plaintiff if the defendant could exclude or restrict its retrievability (e.g. by taking search terms into account). This would apply all the more if the defendant could control the conditions for making the article accessible via Internet search engines.
Should the defendant be able to counter the fact that the article can be found by Internet search engines without significant effort by taking appropriate measures, the plaintiff’s interest in protection would not outweigh the defendant’s interests worthy of protection solely because the defendant still has the article available for retrieval in its online archive more than twenty years after it was first published.
It is true that the plaintiff’s interest in being spared a reactualization of his misconduct carries greater weight because the main criminal trial took place a long time ago. However, the degree of dissemination of the article would be low due to its retrievability in the online archive – i.e. without (unrestricted) retrievability and accessibility via Internet search engines. The article is expressly marked as an old report (\”Published on 03.12.1997\”), which is readily apparent to the user. It is also not embedded in any other way in a context that would give it the appearance of topicality or the character of renewed reporting and justify the assumption that the defendant has dealt with the plaintiff in his role as defendant again or for an unlimited period of time (cf. Senate, judgments of May 8, 2012 – VI ZR 217/08, NJW 2012, 2197 para. 43; of February 1, 2011 – VI ZR 345/09, NJW 2011, 2285 para. 20; of February 9, 2010 – VI ZR 243/09, NJW 2011, 2285 para. 20; of February 2010 – VI ZR 243/08, NJW 2010, 2432 para. 22; of December 15, 2009 – VI ZR 227/08, BGHZ 183, 353 para. 19; ECtHR, judgment of June 28, 2018 – 60798/10 and 65599/10, para. 112 f.).
Another factor in the defendant’s favor is that the public has a recognizable interest not only in information about current events, but also in the possibility of researching past historical events on the basis of unaltered original reports in the media. Accordingly, the media also perform their task of informing the public in the exercise of freedom of expression and participating in the democratic decision-making process by keeping out-of-date publications available to interested media users (see Senate, judgments of November 13, 2012 – VI ZR 330/11, AfP 2013, 54 para. 18; of May 8, 2012 – VI ZR 217/08, NJW 2012, 2197 para. 44; of February 1, 2011 – VI ZR 345/09, NJW 2011, 2285 para. 21; of February 9, 2010 – VI ZR 243/08, NJW 2010, 2432 para. 23; of December 15, 2009 – VI ZR 227/08, BGHZ 183, 353 para. 20; in each case with further references; ECtHR, judgment of June 28, 2018 – 60798/10 and 65599/10, paras. 91 et seq, 98 et seq., 101 f., 105).
In addition, the risk of a deterrent effect on the use of freedom of expression and freedom of the press, which could restrict the free information and communication process, must be taken into account. If the continued unaltered availability of old reports that were recognizable as such and permissible at the time of their initial publication on pages intended for old reports for retrieval on the Internet were to become inadmissible after a certain period of time or after a change in the underlying circumstances, and if the press were obliged to check archived contributions for their legality, in view of the personnel and time expenditure associated with such a check, there would be a risk that the press would either completely refrain from archiving the article accessible to the public or would already exclude the circumstances at the time of initial publication which – as in the present case the name of the plaintiff – could later make the further provision of the article unlawful (cf. Senate, judgments of May 8, 2012 – VI ZR 217/08, NJW 2012, 2197 para. 45; of February 1, 2011 – VI ZR 345/09, NJW 2011, 2285 para. 22; of February 9, 2010 – VI ZR 243/08, NJW 2010, 2432 para. 24; of December 15, 2009 – VI ZR 227/08, BGHZ 183, 353 para. 21; in each case with further references; ECtHR, judgment of June 28, 2018 – 60798/10 and 65599/10, para. 103). The obligation to examine the legality of a report at a later stage following a request or complaint by the person concerned would also entail the risk that the press would refrain from keeping reports in its online archives or omit individual elements from its reports that are likely to be the subject of such a request or complaint (see ECtHR, judgment of June 28, 2018 – 60798/10 and 65599/10, para. 104).
2. the judgment on appeal is not correct for other reasons (Section 561 ZPO). The asserted claim for injunctive relief does not exist according to the principles of the data protection law applicable at the time of the conclusion of the last oral hearing before the Court of Appeal on September 25, 2017. In this respect, the factual and legal situation at the end of the oral hearing before the Court of Appeal is decisive for the legal assessment (see BGH, judgments of November 18, 2010 – I ZR 156/07, juris para. 20 ff., 53 – betandwin.com; of December 2, 2009 – I ZR 77/06, juris para. 12 – Sportwetten im Internet I). At this point in time, the provision of the article for retrieval was in any case subject to the so-called media privilege of Section 57 para. 1 sentence 1 Staatsvertrag für Rundfunk und Telemedien (RStV) aF (see Senate, judgments of February 1, 2011 – VI ZR 345/09, NJW 2011, 2285 para. 23 et seq.; of February 9, 2010 – VI ZR 243/08, NJW 2010, 2432 para. 25 et seq.; on Section 17 para. 1 Deutschlandradio-Staatsvertrag aF Senate, judgment of December 15, 2009 – VI ZR 227/08, BGHZ 183, 353 para. 22 et seq.).
3 The contested judgment was therefore to be set aside and the matter referred back to the court of appeal (section 562 (1), section 563 (1) sentence 1 ZPO). This court will have the opportunity to consider the further submissions of the parties in the appeal proceedings. This also includes the fact raised in the appeal hearing that at least the internet search engine Google does not (or no longer) display the article as a search result after entering the plaintiff’s name.
von Pentz Wellner Roloff Klein Allgayer Previous instances:
Berlin Regional Court, decision of 29/09/2016 – 27 O 243/16 –
KG Berlin, decision of 25.09.2017 – 10 U 110/16 –