Regional Court Essen, judgment of 30.1.2019 – 12 O 62/18

The tenant of an apartment does not have to tolerate the installation of cameras or corresponding dummies in the hallway. The resulting violation of the general right of personality cannot be justified by the fact that the landlord wants to protect his property - without a specific reason, purely as a precaution.

Tenor:

The defendants are ordered to refrain from carrying out video or audio surveillance of the stairwell of the apartment building … under penalty of an administrative fine of up to € 250,000.00 to be determined by the court for each case of infringement, or administrative detention for up to six months.

The defendants are further ordered to remove the video camera installed on the second floor of the stairwell of the apartment building … and the installed dummy camera.

The defendants are also ordered to permanently delete all image and sound recordings of the plaintiff made with the video camera on all data carriers.

The defendants are further ordered as joint and several debtors to pay the plaintiff extrajudicial costs of € 297.62 plus interest of five percentage points above the prime rate since April 16, 2018.

The remainder of the action is dismissed.

The defendants are ordered to pay the costs.

The judgment is provisionally enforceable.

The defendants are granted leave to avert enforcement by providing security in the amount of € 3,000.00, unless the plaintiff provides security in this amount prior to enforcement.

Facts:

The parties are in dispute about the legality of the installation of a video camera in the hallway of the apartment building occupied by both parties. The plaintiff is seeking an order against the defendant to refrain from video surveillance of the hallway, to remove the installed video camera and the installed dummy camera and to delete all recordings made of the plaintiff.

The parties are neighbors. They live in an apartment building at …. The defendants live in an apartment on the second floor, which is owned by defendant 1). There is no other apartment on the same floor as the defendant’s apartment. The plaintiff and his wife live for rent in an apartment on the second floor of the building. There is another apartment on the same floor. Since 01.01.2019, defendant 1) has been the owner of the apartment in which the plaintiff lives.

The neighborly relationship between the parties is tense. There have been repeated disputes with verbal arguments, the origin and content of which are disputed between the parties.

In January 2017, the defendants installed a dummy video camera above their entrance door on the second floor. This is directed towards the staircase from the first to the second floor of the house and is equipped with a red light that gives the appearance of a recording.

In the period after July 16, 2017, the defendants set up a functional video camera in the hallway in front of their apartment on the second floor of the building in addition to the dummy camera. This camera makes image and sound recordings. The hallway in which the camera is installed is common property that may be used by all residents. The camera records the area in front of the defendant’s apartment and the upper area of the staircase from the first to the second floor. There is a window in the hallway on the second floor that is in the camera’s recording area, so that people who open or close the window are filmed.

At no time did the plaintiff consent to the production of video and audio recordings.

On December 8, 2017, the defendant (2) sent the plaintiff an email with the following wording:

“What are these secret actions in the dark outside our apartment door? Who is the stranger you sent there? If we don’t get complete clarity in the short term, we will immediately press charges against you and against persons unknown!”

For further details, reference is made to the email dated December 8, 2017 (Annex 5 to the statement of claim, p. 21 of the annex).

Attached to the email was a video that the defendant’s camera had recorded on the same day. At the beginning of the video, it can be seen that no light is initially switched on in the hallway. Shortly after the video starts, you can hear someone opening the front door of the house and entering the house. The light in the hallway then switches on. The plaintiff’s wife can be heard saying to him that the window in the hallway must be open. After a while, the light in the hallway switches off again. A short time later, the video shows the plaintiff going to the upper floor of the house and closing the hallway window. After the plaintiff can no longer be seen, the video continues for approx. 1:48 minutes without anyone being seen or heard. With regard to the specific content of the video, reference is made to Annex K2 to the statement of claim (p. 18).

On 02.02.2018, the plaintiff filed a complaint with the State Commissioner for Data Protection and Freedom of Information due to the video recording by his lawyer. In a lawyer’s letter dated 8 February 2018, the plaintiff requested that the defendants submit a cease-and-desist declaration with a penalty clause by 23 February 2018 with regard to the further video recordings, remove the video camera and delete all recordings. The defendants rejected this in a lawyer’s letter dated 22.02.2018.

The plaintiff claims that he and his wife are under constant surveillance pressure as a result of the video camera. This leads to them only walking through the hallway in silence. The plaintiff also claims that the video recordings made have not yet been deleted by the defendants.

With his application under 2), the plaintiff initially requested that the video camera installed on the second floor be removed. In a statement dated 20.06.2018, the plaintiff amended the application to the effect that the installed dummy camera should also be removed in addition to the installed video camera.

The plaintiff now requests,

1. order the defendants to refrain from carrying out video and/or audio surveillance of the stairwell of the apartment building … on pain of a fine of up to € 250,000.00, or imprisonment for up to six months,

2.order the defendants to remove the video camera installed on the second floor of the stairwell of the apartment building … and the installed dummy camera,

3. order the defendants to permanently delete all image and sound recordings of the plaintiff made with the video camera on all data carriers,

4. order the defendants jointly and severally to pay to the plaintiff extrajudicial costs in the amount of € 757.32 plus interest in the amount of 5 percentage points above the prime rate.

The defendants request,

dismiss the action.

The defendants contest the jurisdiction of the Essen Regional Court.

They are also of the opinion that the installation of the video camera was lawful, as it serves to protect their property and their person. To this end, they claim that the neighboring house in … has already been broken into three times, most recently at the end of 2014. Ten years ago, there had been a break-in in the first floor apartment of the house … . There had already been eleven break-ins in the rest of the neighborhood. On 28.12., 29.12.2018 and 02.01.2019, the police in … on the internet about break-ins in streets within a radius of 100 m as the crow flies from the house at issue … and … reported.

In addition, the defendants had to protect themselves from the plaintiff with the video camera. There had been several verbal disputes with the plaintiff in the past. On March 10, 2017, for example, the plaintiff refused to allow the defendant 1) to enter the stairwell and asked him whether he did not know that libel and slander were punishable by prison sentences. In addition, the plaintiff had repeatedly become abusive towards the defendants because they had greeted him or his wife, although the plaintiff had expressed that he no longer wanted to be greeted by the defendants. On 16.07.2017, the plaintiff did not allow the defendants to pass in the stairwell. He insulted the defendants and followed them to their door on the second floor. When the defendants walked past him, he raised his hand threateningly several times. On December 9, 2017, the plaintiff made insulting remarks about the defendants’ homosexuality at a Christmas barbecue for the residents of the building.

The defendants also claim that since an update in January 2018, the video camera is only activated by movements in the camera’s detection area. After the camera is activated, it is now only active for two minutes and then switches off automatically. The recorded footage is automatically deleted after 24 hours. The video showing the plaintiff on 8 December 2017 had also already been deleted.

The action was served on the defendants on 15.04.2018.

Reasons for the decision:

The action is admissible and, according to the concurring submissions of both parties, essentially well-founded.

In particular, the Essen Regional Court is also authorized pursuant to §§ Sections 23 no. 1, 71 para. 1 GVG, since the amount in dispute exceeds the sum of € 5,000. The amount in dispute is € 6,000, since for the applications 1) to 3) acc. § 3 ZPO, a value in dispute of € 2,000 was to be assumed in each case.

1) The plaintiff is entitled to the claim asserted with the claim under 1) for injunctive relief against video and audio surveillance of the stairwell pursuant to Section 1004 para. § 1004 para. 1 sentence 2 BGB analogously in conjunction with. § Section 823 para. 1 BGB. This is because the video and audio recordings violate the plaintiff’s general right of personality and are also not justified by the defendants’ interests that require protection. The defendants violated the plaintiff’s general right of personality in its manifestation as the right to informational self-determination by making video and audio recordings of the plaintiff using a video camera.

The general right of personality protects the right of the individual to decide for themselves when and within what limits personal life circumstances are disclosed and personal data is disclosed and used (BGH, judgment of March 16, 2010, case no. VI ZR 176/09 = NJW 2010, 1533, 1534 para. 11). For this reason, the general right of personality also protects everyone from technically supported observation and the recording of personal circumstances without consent. The free development of one’s own personality is endangered if there is a risk of being observed at any time by people who cannot see you or if there is a risk of your own behavior being reproducibly recorded. This is because video and audio recordings can be used to technically record life events and subsequently retrieve, process and, if necessary, evaluate them. As a result, a large amount of information can be obtained about the persons concerned, their family members, friends and visitors (BVerfG, decision of 23.02.2007, Ref. 1 BvR 2368/06 = NVwZ 2007, 688, 690; AG Brandenburg, Urt. v. 22.02.2016, Ref. 31 C 138/14 = BeckRS 2016, 1524). The material obtained through surveillance can also be used to influence the behavior of the person concerned by collecting “incriminating” material about them (see AG Brandenburg, Urt. v. 22.01.2016, Ref. 31 C 138/14 = NJOZ 2017, 365, 367).

The video camera set up by the defendants not only recorded the plaintiff’s behavior, the defendants also held out the prospect of using the material collected about him against him under criminal law. This constitutes a serious violation of the plaintiff’s general right of personality.

On December 8, 2017, the defendant’s video camera recorded the plaintiff and his wife entering the apartment building in … with his wife. The image recording area of the video camera only directly covers the area of the hallway in front of the defendant’s apartment on the second floor. However, the camera also makes sound recordings, so that the conversation between the plaintiff and his wife was recorded by the camera and can be heard on the recording. In addition, the defendant’s video camera also filmed the plaintiff when he closed the hallway window on the second floor. The defendants used this recording of the plaintiff to threaten the plaintiff with criminal consequences for his behavior. With the video and audio recording, the defendants therefore obviously wanted to influence the plaintiff’s behavior and prevent him from entering the upper floor in the future and closing the hallway window there. However, as the hallway is common property, the plaintiff is authorized to enter this area and also to close the window there.

In addition, the recording function of the video camera means that the defendants can potentially record and document all of the plaintiff’s conversations with his wife or other visitors in the hallway, which means that the plaintiff is under constant surveillance pressure from the defendants. The plaintiff also has no way of avoiding this surveillance, as he is dependent on the use of the hallway. The only way to reliably prevent recordings of his conversations is to refrain from recording them in the hallway altogether.

This impairment of the plaintiff’s general right of personality is also unlawful, as the interests of the plaintiff worthy of protection prevail when weighing up the conflicting interests as a whole.

Whether an impairment of the general right of personality is unlawful must be answered by assessing all the circumstances of the individual case and by carrying out a comprehensive weighing of interests (BGH, judgment of March 16, 2010, case no. VI ZR 176/09 = NJW 2010, 1533, 1534 para. 11). In order for the balance to be in favor of the user of the video camera, the surveillance must be necessary to prevent serious interference and the impending interference must not be preventable in any other way (BGH, Urt. v. 25.04.1995, Az. VI ZR 272/94 = NJW 1995, 1955, 1957; LG Paderborn, Urt. v. 30.11.2017, ref. 3 O 182/17 = NZM 2018, 766, 768). According to the defendant’s submission, there are no such serious impairments.

In particular, the video surveillance cannot be justified by the defendants’ need to protect their property from burglaries. In principle, the defendants have the constitutionally guaranteed right (Art. 14 GG) to take appropriate protective measures for their property. However, this may not be done in a disproportionate manner at the expense of interfering with high-ranking legal interests of third parties (BGH, judgment of April 25, 1995, file no. VI ZR 272/94 = NJW 1995, 1955, 1957). A purely precautionary monitoring of the residential property, which is not linked to acts already committed, is disproportionate (see KG, decision of 04.08.2008, ref. 8 U 83/08 = NZM 2009, 736, 737).

Even according to the defendant’s submission, there is no concrete reason for the video surveillance in the form of break-ins in … . The defendants merely claim that there was a break-in in the first floor apartment 10 years ago. When asked at their hearing on January 9, 2019, they were unable to say whether the burglars entered the apartment via the stairwell or via a window or patio door. In addition, her neighbor’s house in … had been broken into, with the last break-in having taken place at the end of 2014. In addition, the defendants claim that there have already been several break-ins in the wider neighborhood. These incidents – even if they have actually occurred – do not justify permanent video surveillance. This is because there is only an abstract risk that a break-in will also occur in … a break-in will occur in the future. It is also doubtful whether the defendant’s video camera has any deterrent effect at all and can fulfill its intended purpose. Since it is only located above the defendant’s front door and is not otherwise indicated, it does not deter potential burglars from entering the apartment building.

Even the neighborly disputes with the plaintiff cited by the defendants as justification cannot justify permanent surveillance of the hallway. It is therefore irrelevant whether such disputes with the plaintiff actually took place. This is because these are not particularly serious disturbances, nor have the defendants shown that the alleged disturbances cannot be prevented in any other way than by monitoring the hallway. For the most part, the alleged disturbances are merely mutual verbal disputes of minor importance. The alleged incident of 16.07.2017 would also not be sufficient grounds for permanent video surveillance. This is because, according to the defendant’s submission, there was only a verbal altercation here too. The fact that the plaintiff is said to have raised his hand in a threatening manner is not sufficient to justify the permanent interference with his general right to privacy. The video camera only records part of the stairwell anyway and offers no protection against insults or threats made outside the building. Furthermore, it is also reasonable to expect the defendants to avoid future disputes with the plaintiff in other ways, for example through dispute resolution.

Finally, the interference with the general right of personality is also not justified by the plaintiff’s consent. At no time did he consent to the video and audio recordings being made. In contrast, it is irrelevant whether the other residents of the building or the apartment owners consented to the video recordings being made. This is because the holder of the fundamental right must always consent to any impairment of the general right of personality.

Contrary to what the defendants believe, the interference would not be justified even if the plaintiff had installed an electronic peephole in his apartment door, which he also denies. This would at best entitle them to take action against the plaintiff.

The defendants are also the correct opponents of the claim in their capacity as the party interfering with the action. In addition, the risk of repetition required for the affirmation of a claim for injunctive relief must also be affirmed. As a rule, the previous unlawful impairment gives rise to a factual presumption of the risk of repetition (Herrler in Palandt, 78th ed. 2019, Section 1004 para. 32). It is irrelevant whether the video camera is now operated differently and the recording function is only triggered by movements in the area covered by the video camera. This is because, from the perspective of an objective third party in the position of the plaintiff, the earlier film and sound recordings alone give rise to the obvious fear of repeatedly becoming the subject of surveillance (see OLG Cologne, judgment of 22.06.2016, Ref. 15 U 33/16 = NJW 2017, 835, 836). This applies in particular against the background of the existing neighbor dispute between the parties.

2) The plaintiff is also entitled to the claim for removal of the video camera and the dummy camera asserted in the second claim. The claim arises from § 1004 para. 1 sentence 1 BGB analogously in conjunction with. § Section 823 para. 1 BGB.

The plaintiff is entitled to a claim against the defendants for removal of the interference due to the interference with his general right of personality. In the present case, this claim for removal also exceptionally justifies the specific legal consequence sought by the plaintiff, namely the removal of the camera and the dummy. In the context of a claim under Section 1004 para. 1 sentence 1 BGB if this measure alone guarantees the non-occurrence of the impending impairment (see OLG Cologne, judgment of 22.06.2016, case no. 15 U 33/16 = NJW 2017, 835, 836). According to these standards, the plaintiff can demand the requested removal, as there is no alternative to removing the impairment. This applies to both the functioning camera and the dummy camera. This is because both expose the plaintiff to constant surveillance pressure, which can only be eliminated by complete removal. Constant surveillance pressure violates the general right of personality if the person concerned must objectively seriously fear surveillance by surveillance cameras (BGH, judgment of 16.03.2010, file no. VI ZR 176/09 = NJW 2010, 1533, 1534 para. 13).

With regard to the functioning camera, this surveillance pressure results on the one hand from the fact that image and sound recordings were indisputably made in the past and on the other hand from the fact that the location of the camera and its specific mode of operation can be changed at any time without this being perceived in type and scope by an outside observer. In addition, the relationship between the parties is characterized by neighborly disputes. In this respect, too, it is not far-fetched that the defendants could also use the video camera in the future to monitor the plaintiff again (see OLG Cologne, judgment of 22.06.2016, ref. 15 U 33/16 = NJW 2017, 835, 837).

The dummy camera also leads to an impairment of the plaintiff’s general right of personality. This is because even if surveillance does not actually take place, the remaining surveillance pressure may be sufficient if there are corresponding grounds for suspicion and surveillance is objectively to be seriously feared (LG Berlin, Urt. v. 28.10.2015, Ref. 67 S 82/15 = ZD 2016, 189 f.; BGH, Urt. v. 16.03.2010, ref. VI ZR 176/09 = NJW 2010, 1533, 1534 para. 13). This is the case here, as it is not easy to tell from the outside whether a mere dummy or a video camera with recordings is being operated. It is not possible and also not reasonable for the plaintiff to continuously check the circumstances to see whether it has remained a dummy. This is particularly true in view of the fact that the currently installed dummy camera already looks deceptively real and can therefore easily be replaced by a real video camera without this being noticed.

3. furthermore, the plaintiff is entitled against the defendants pursuant to sec. § 1004 para. 1 sentence 1 BGB analogously in conjunction with. § 823 para. 1 BGB a claim for deletion of all image and sound recordings made by him. The storage of the recordings unlawfully violates the plaintiff’s general right of personality. The claim has also not been settled in the meantime. Although the defendants claim that the material has been deleted in the meantime, this is disputed by the plaintiff. This is not contradicted by the fact that, according to the defendant’s submission, the stored image and sound material is automatically deleted after 24 hours. This is because it cannot be ruled out that film or sound recordings will be made in the last 24 hours before the hearing. Even in the case of removal, it is possible that film or sound files were still stored in the last 24 hours.

In the case of a claim for removal pursuant to Section 1004 para. 1 sentence 1 BGB, the impairment must still exist at the time of the last oral hearing (Herrler in: Palandt, § 1004 para. 27). In principle, the plaintiff bears the burden of proof for the existence of a continuing impairment. However, the defendants have a secondary burden of proof with regard to the fact that they have actually deleted the videos. Such a secondary burden of proof presupposes that a more detailed explanation of the facts is not possible or not reasonable for the party with the primary burden of proof, while the opponent knows all the essential facts and it is reasonable for him to provide more detailed information (BGH, judgment of 10.2.2015, case no. VI ZR 343/13 = NJW-RR 2015, 1279, 1280). It is not possible for the plaintiff to specifically demonstrate that the defendants have not yet deleted the video material, as he has no knowledge of this fact and also does not have the opportunity to obtain this knowledge. On the other hand, it would have been possible and reasonable for the defendants to provide more detailed information on when the videos were deleted by them. However, the defendants did not meet this burden of proof, as they merely claimed in general terms that the material had already been deleted. The plaintiff’s submission that the material had not yet been deleted therefore had to be taken as a basis.

For this reason, it is also irrelevant whether the plaintiff is also entitled to erasure under Art. 17 GDPR.

4) The plaintiff is only entitled to the claim for compensation for extrajudicial costs in the amount of € 297.62 and only for the costs of the defendant’s warning. The claim follows from § 823 para. 1 BGB, as the video surveillance unlawfully violated the plaintiff’s general personal rights. The pre-litigation costs for the warning are reimbursable pursuant to Section 249 para. 1 BGB, as the plaintiff incurred these costs to avert the infringement and was entitled to consider them necessary (Grüneberg in: Palandt, Vorb. v. § 249, para. 44). However, the plaintiff is only entitled to a claim of € 297.62, as he is demanding the non-chargeable part of the business fee of € 0.65 and the amount in dispute is € 6,000.

The claim for interest follows from §§ 291, 288 BGB. In the absence of any other indications, the plaintiff’s application was to be interpreted as meaning that interest was to be claimed from the lis pendens.

On the other hand, the plaintiff cannot demand reimbursement of the pre-litigation costs for the notification to the state data protection officer. Because according to § 249 Abs. 1 BGB, only such expenses are reimbursable that the injured party was entitled to consider appropriate and necessary. In particular, the costs necessary to enforce the claim are reimbursable (Grüneberg in: Palandt, § 249 para. 56). However, the notification to the State Commissioner for Data Protection was not necessary for the enforcement of the claim under civil law. In this respect, the same principles apply as in the case of a criminal complaint against a tortfeasor. Here, too, the reimbursability of the costs is denied, as a criminal complaint is not necessary for the enforcement of the claim under civil law (Oetker in: MünchKomm/BGB, 7th ed. 2016, Section 249 para. 188).

The threat of an order follows from Section 890 para. 2 ZPO. The decision on costs is based on Section 91 ZPO. The decision on provisional enforceability is made in accordance with sections 708 no. 11, 711 sentence 1 ZPO.

The defendant’s pleading of 14.01.2019, which has not been remitted, does not justify re-entering the oral hearing. As stated, the peephole in the plaintiff’s apartment door is irrelevant. It is also irrelevant to the legal dispute whether the balcony of the plaintiff’s apartment has a defect. Apart from that, the defendants merely repeated their submission on how the video camera works.

Contact person

Free newsletter

Matching contributions

Search

Request