Hanseatic Higher Regional Court
7 U 109/18
324 O 463/17 LG Hamburg
Verdict
ON BEHALF OF THE PEOPLE
In the matter
A AG,
represented by the Management Board,
– Applicant and appellant –
Attorneys of record: Attorneys …
vs.
1) B
– Respondent and appellant –
2) C
– Defendant and appellant –
3) D GmbH, represented by the managing director
– Defendant and appellant –
Attorneys at law 1 – 3: Attorneys at law …
the Hanseatic Higher Regional Court – 7th Civil Senate – by the Presiding Judge at the Higher Regional Court X, the Judge at the Higher Regional Court Y and the Judge at the Higher Regional Court Z on the basis of the oral hearing on 26.03.2019:
Tenor:
1. on appeal by the defendants, the judgment of the Hamburg Regional Court, 324 O 463/17, of 21.3.2018 is amended on the point of costs
Of the costs of the proceedings at first instance, the applicant shall bear 31% and the defendants 23% each.
2. the further appeal of the defendants is dismissed.
3. order the defendants to pay the costs of the appeal proceedings.
Reasons:
I.
The parties are disputing the validity of a temporary injunction issued successively by the Chamber on October 12, 2017 and by the Senate on November 8, 2017 (case no. 7 W 123/17) and confirmed by the Hamburg Regional Court in the contested ruling of March 21, 2018.
In these press injunction proceedings, the applicant is seeking an injunction against the defendants due to a text report entitled “E” in the issue of the magazine “D” from 24/25 August 2017. This is published by the publishing house of the defendant 1); the defendants 2) and 3) are the authors of the article in dispute (Annex ASt 2). The applicant is the group holding company of the A Group … On September 20, 2017, the applicant sent the defendants a warning letter due to this reporting (Annex ASt 3). The parties have already disputed at first instance with regard to some points as to whether and to what extent this warning was sufficient. As the warning was unsuccessful, the applicant filed an application for an interim injunction with the Hamburg Regional Court on September 27/28, 2017. With regard to the prohibition originally sought under I.5. the applicant withdrew this application on October 9, 2017. The applications for items I.3. and I.4. were modified in the same pleading. In a written submission dated 11.10.2017, the applicant modified the application under I.4. was modified again. The parties have already argued in the first instance about the legal conclusions to be drawn from these modifications, in particular whether the respective subject matter of the dispute – also compared to the warning – has been changed as a result.
On October 19, 2017, the Regional Court issued an interim injunction granting this application only in part. With this order, the defendants were prohibited from using the website under penalty of the legally stipulated administrative remedies (Section I. of the preliminary injunction dated October 19, 2017):
1. (…)
2. to assert and/or have asserted and/or disseminated and/or have disseminated that since those responsible at Company A have been under investigation (at the beginning of 2015), the head of Company A, Markus F, has been less frequently drawn to Germany
3. through reporting
“Customs officials caught him checking in at L Airport with thick bundles of banknotes – a total of … euros. … It is not known how G came to terms with the officials. In any case, the money confiscated in K was returned to him.”
to create and/or cause to be created and/or disseminate and/or cause to be disseminated the impression that A-Chairman G had recovered the … euros seized from him at L Airport on the basis of an arrangement with the K officials;
4. to assert and/or have asserted and/or disseminate and/or have disseminated,
“At the beginning of June, H resigned as auditor of J.”
5. (…).
in each case as occurred in D of 25.9.2017 … under the heading “E”.
On 30.10.2017, the defendants filed a complaint with regard to items I.2. and I.4. submitted a final declaration (Annex AG 1). On November 7, 2017, the defendants clarified in writing that they would only disseminate the statement on item I.3. in future only in a clarified form.
In response to the applicant’s immediate appeal against the dismissal of her application for an injunction under I.1. the Senate additionally prohibited the defendants on 8.11.2017 (case no. 7 W 123/17):
1. to assert and/or have asserted and/or disseminate and/or have disseminated,
in three countries, “investigators” were investigating those responsible at …Group A “for tax avoidance”, as happened in D of 25.9.2017 … under the heading “E”.
On December 1, 2017, the defendants submitted a cease-and-desist declaration with a penalty clause with regard to the statement prohibited by the Senate’s prohibition under Section I.1. whereby the promise to cease and desist refers to the creation of a certain impression (Annex AG 3).
With their partial objection of 7.11.2017, the defendants only challenged the prohibition under item I.3. as such. In addition, with regard to the prohibition under I.4. they challenged the Chamber’s decision on costs. In addition, the parties disputed at first instance whether the application/prohibition under I.1. has been discharged.
The Regional Court confirmed the interim injunction under I.3. with the contested judgment of 21.3.2018, also determined that the proceedings with regard to the application under I.1. and confirmed the decision on costs from the decision of the Senate dated 8.11.2017 (case no. 7 W 123/17). Reference is made to the contested decision for further details.
The defendants are challenging this with their appeal, which they substantiate as follows:
With regard to the application under I.1. no settlement had been reached. The prohibition under I.1. did not inadmissibly prohibit a specific variant of interpretation (as an impression), but simply an alleged factual assertion; the reasons for the Higher Regional Court’s decision could not be reconciled with the operative part – in which an “assertion” was prohibited – in the slightest. In the case of ambiguous statements, it is by no means always only the statement itself that is prohibited, as the Regional Court claimed; an addition “… as happened in” does not change this. It is also not apparent from the petition that the petitioner is merely objecting to a specific variant of the interpretation of this statement. Moreover, the applicant’s statement of 9.10.2017 expressly states that the requested (main) prohibition of a supposedly mandatory statement should apply.
With regard to the application under point I.3. the prohibition should be lifted. They – the defendants – had provided sufficient clarification in this regard. On the other hand, a compelling impression could not have been created. According to the context, the challenged sentence could only refer to the issue of the additional tax claim. In any case, the interpretation variant of the Chamber was also and especially far-fetched according to the context, but in any case not compelling. The Chamber’s assumption that the entire arrangement had been given the appearance of being unlawful was also completely obscure; this could only be explained by the fact that the Chamber compulsively and far beyond the understanding of a reasonable average citizen was interpreting something prohibitive into completely innocuous formulations.
The costs relating to the applications under I.3. and I.4. should in any case be imposed on the applicant: The application under I.3. referred to an allegation that the prohibition prohibited an impression; this is not the same subject matter of the dispute, which is already evident from the fact that the applicant had to file a new application upon the Board’s notice. The warning in relation to the application under I.3. was also insufficient; it did not show an ambiguity and the variant of interpretation that was ultimately deemed inadmissible. With regard to the application under I.4. there had been a partial withdrawal by the applicant. The original application was directed against an impression that was to be created by a long passage; the prohibition was limited to one sentence from this passage. The impression complained of had by no means been (completely) created, which is why the Chamber had again changed the application, whereby half of the originally pursued injunction request had been dropped. The Chamber itself acknowledged that it had overlooked the partial withdrawal in this case; contrary to the opinion of the Regional Court, Section 99 I ZPO in no way precludes a review of the decision on costs; moreover, the interim injunction had also been partially challenged on the merits.
The defendants apply,
the judgment of the Regional Court of Hamburg dated March 21, 2018 (324 O 463/17), the interim injunction of the Regional Court of Hamburg dated October 12, 2017 regarding item I.3. and the interim injunction of the Hanseatic Higher Regional Court of 8.11.2017 (7 W 123/17), to set aside the respective underlying applications and the application for a declaration that the proceedings in the main proceedings on point I.1. of the application from the notice of motion dated 27.9.2017 and to reject the decision on costs of the Regional Court of Hamburg under item II. of the interim injunction dated 12.10.2017 with regard to items I.3. and I.4. to correct the prohibitions issued under items I.3. and I.4.
The applicant requests,
dismiss the appeal.
The applicant defends the contested judgment and submits the grounds: The prohibition under I.1. made the prohibited variant of interpretation clear by underlining the word “three”. According to the application, this had also been challenged. The clarification by the defendants (Annex AG 3) had only been made after the interim injunction had been issued. With regard to the statement pursuant to item I.3. it was evident that the arrangement with officials mentioned in the report referred to the money confiscated in K. In addition, the defendants themselves insisted in their letter of refusal (Annex ASt 4) themselves insisted that the applicant had made arrangements with K’s officials. The change in the application to I.3. from the prohibition of a direct statement of fact to a statement of impression does not constitute a change in the subject matter of the dispute. With regard to application I.4. the material objective of the requested declaration to cease and desist in the warning letter was unambiguous. The change from a version of impression to a direct statement of fact in the application was a clarification, not a partial withdrawal.
For further details, reference is made to the facts and reasons of the judgment under appeal in accordance with Sections 540 I, II, 313a ZPO. In addition, reference is made to the written submissions submitted to the file together with the annexes and the minutes of the hearing on March 26, 2019.
II.
The admissible appeal is largely unfounded. The Regional Court rightly confirmed the interim injunction of 12.10.2017 with regard to item I.3. confirmed (1.). With regard to the application under I.1. has been disposed of; the defendants must bear the costs in this respect (2.). With regard to the application under I.4. was already partially withdrawn by the applicant in the first instance, which has an effect on the decision on costs in the first instance (3.). In detail:
1. the Regional Court was right to confirm the interim injunction of 12.10.2017 with regard to Section I.3. because the applicant is entitled to injunctive relief under Sections 823 I, 1004 BGB analogously in conjunction with her (corporate) right of personality with regard to the statement challenged hereby.
a. The statement in dispute, which the applicant has attacked with the application under I.3. in the context of the reporting in question, creates a factual impression that is inaccurate and is also capable of disparaging the reputation of the applicant in the public eye.
aa. In the challenged decision, the Regional Court stated correctly and with appropriate reasoning that the challenged reporting “Customs officials caught him checking in at L Airport with thick bundles of banknotes – a total of … euros. … How G came to terms with the officials is unknown. In any case, the money confiscated in K was returned to him.”
the compelling impression is created that the applicant’s chairman G had received back the € … seized from him at L Airport due to an “arrangement” with the k’s officials. The Regional Court has explained in detail why this impression is also and especially created in the context of the article in question. The Senate refers to these convincing statements in order to avoid repetition. The arguments are merely outlined as follows for confirmation: According to the structure of the article, it is obvious to the reader that the release of the amount of money seized by k’s customs officials can only be achieved through an “arrangement” with these same – k’s – officials, and not with m’s officials, who, as far as the reader can see, are unlikely to have any factual or legal influence on this. In the relevant paragraph of the passage, the reader can only necessarily understand the repayment of the € … as a consequence of the fact that the applicant’s chairman had – in some way – “come to an arrangement” with the officials of the k’schen authorities (“in any case”); only the rest of the arrangement therefore remained “unknown”.
bb. This is an actual impression. It is true that the terms “arrangement” or “arranging” open up a certain scope for evaluation, because whether something is described in this way also depends on the expressing party’s own standards. However, these terms contain the actual statements that there was some kind of direct agreement with the German customs authorities and that this led to the return of the money.
However, it is undisputed that the aforementioned chairman of the applicant, Dr. G, did not receive the confiscated € … back on the basis of any kind of arrangement, agreement, understanding or similar with the K officials, but after a decision of the … Court.
cc. This untrue factual allegation is capable of disparaging the reputation of the applicant in the public eye. The Regional Court rightly pointed out that the report gives the impression that the applicant or her chairman had entered into an agreement that was tainted with the smell of illegality. In order to avoid repetition, the Senate again refers to the statements in the challenged decision.
b. There is a risk of a renewed infringement of the applicant’s (company) right of personality. The infringement that has taken place constitutes a risk of repetition; this is indicated by the unlawful first infringement (see BGH, judgment of February 8, 1994 – case no. VI ZR 286/93 – NJW 1994, 1281, 1283).
c. The grounds for a preliminary injunction are also present. Since the defendants have not questioned this, the Senate refrains from making any further comments on this point.
d. The statements of the defendants on the issue of the objects of the dispute in the warning letter, the various versions of the application for an injunction under Section I.3. and the prohibition in section I.3. of the preliminary injunction do not lead to a different result:
aa. In the warning letter (Annex ASt 3), the applicant stated that the confiscation of the € … and its return had been reported extensively in other media; the return had been ordered by a court. The declaration to cease and desist requested as part of the warning letter contains the quoted passage – as in the original application under I.3. – as a simple statement to be refrained from (albeit in indirect speech) in the forms “to claim and/or to have claimed and/or to disseminate and/or to have disseminated”. As part of the injunction proceedings, the applicant argued that a ban should be issued in accordance with the principles of case law on ambiguous statements (so-called “Stolpe case law”) and submitted the application in its pleading dated October 9, 2017 primarily as an application for a ban on creating a certain formulated impression by means of the text passage quoted in turn; this formulated impression corresponds to the impression that is also created by the challenged passage in the opinion of the Senate. In accordance with this modified application, the Regional Court issued the prohibition under I.3. and later confirmed it in the challenged judgment.
bb. Contrary to the opinion of the defendants, these different versions of the applicant’s claim do not constitute different matters in dispute, but rather one and the same matter in dispute throughout.
(1) In civil proceedings, the two-part concept of the subject matter of the dispute applies; this also applies to proceedings for the issuance of an interim injunction. Accordingly, the independent procedural claim is determined by the application for an action / injunction, in which the legal consequence sought by the plaintiff / applicant is concretized, and the facts of life (reason for the claim) from which the plaintiff / applicant derives the desired legal consequence. According to the established case law of the Federal Court of Justice (BGH), the facts of life are formed from all facts which, from a natural point of view of the parties, belong to the complex of facts presented for decision by the plaintiff (BGH NJW 2013, 540 [Rz .14]; Becker-Eberhard in MüKo-ZPO, 5th edition, Vorb § 253 Rz.33; BGH NJW-RR 2013, 748 [Rz .13]; each with further evidence). This is the case if the factual material cannot be meaningfully divided into various independent sequences of events that change the core content of the facts, even if these are accessible to an independent legal assessment. The subject matter of the dispute is thus determined by the entire historical life event to which the claimant’s request for legal protection relates, regardless of whether individual facts of this life event have been presented by the parties or not, and also regardless of whether the parties were aware of the facts of the life event that were not presented and could have presented them. On the other hand, a majority of matters in dispute exists if the substantive law regulation recognizably shapes the concurring claims differently by making the individual life events independent (BGH decision of 13.12.2012, I ZR 230/11 – GRUR 2013, 401 [Rz .19] – Biomineralwasser; with further evidence).
(2) According to these principles, the facts of the case in proceedings under the law on freedom of expression are generally determined solely by the specific publication, in particular the challenged passage of a contribution in the context of the incriminated publication. The subject matter of the dispute is not additionally determined by how the reader understands this contribution. In particular, it is not a different matter in dispute whether it is argued that a contested text contains an (untrue) factual claim or whether it is argued that it contains an ambiguous statement that must or at least can be understood in the sense of such an untrue factual claim. The determination of the exact content of a contested publication is often a question of evaluation and interpretation; the result is also influenced by the recipient’s own understanding of the language. In many cases, there is no “objectively correct” understanding of the content of a publication; rather, the understanding on which the decision is to be based is determined by the court according to normative criteria based on the understanding of an average reader.
How an application for an injunction is formulated exactly, namely whether as a “simple” prohibition of a certain statement or as a prohibition of creating a certain impression, therefore also depends on the result of this determination of the understanding of the text. If, in the opinion of the court, the plaintiff/applicant has based this on an incorrect understanding of the challenged publication and has therefore formulated an application that does not exactly match the content of the publication, it is therefore not a matter of a different factual situation within the meaning of the concept of the subject matter of the dispute, but merely a (in the opinion of the respective court: incorrect) conclusion from one and the same factual situation. According to the above principles, this applies as long as, from a natural point of view of the parties, the various formulations of the application belong to the set of facts put forward for decision by the plaintiff; this will generally be the case if the requested prohibition is subject to a reference to the specific form of infringement (e.g. “… as occurred in” or similar).
In addition, aspects of fairness also speak in favor of a concept of the subject matter of the dispute that is to be understood in this way. This is because, due to the margin of appreciation that generally exists when determining the content of a statement, it would be unfair to burden a plaintiff/applicant with the risk of whether their own understanding has “met” the understanding of the language of the judge appointed to make the decision.
(3) Accordingly, the First Civil Senate of the BGH in competition matters (and to some extent also for trademark law) has again abandoned its narrow concept of the subject matter of the dispute, which it had pursued in the meantime. For example, the First Civil Senate of the BGH had previously held that the conclusive pleading of an action against misleading advertising included the submission in which respect the public understanding deviated from reality; if it was submitted in the course of the proceedings that the advertising complained of was also inaccurate and therefore misleading from another point of view not yet presented in the action, this would constitute a new subject matter of the dispute (cf. BGH, judgment of 13.7.2006 – I ZR 222/03 – NJW 2007, 337 – dentalästhetika II). As this led to an “atomization” of the subject matter of the dispute and, above all, to unreasonable cost consequences, the First Civil Senate of the BGH has now expressly abandoned this case law, for example in its judgment of 13 September 2012 (I ZR 230/11 – GRUR 2013, 401 – Biomineralwasser). Accordingly, the specific form of infringement forms the subject matter of the dispute in an action for injunctive relief under competition law if the action pursues a corresponding request for injunctive relief. In this case, the subject matter of the dispute – irrespective of whether the plaintiff has relied on this legal infringement and made the factual submission relating to this legal infringement – includes all legal infringements that have been realized in the specific form of infringement, even if the various infringements each require a different factual submission (BGH, judgment of 13.12.2012, I ZR 230/11 – GRUR 2013, 401 [Rz .19] – Biomineralwasser; with further evidence). An excessively fine-grained definition of the subject matter of the dispute, which is strictly based on the facts of life presented and already assigns each variant – such as, for example, each even slightly different misjudgement of consumers caused by one and the same advertising statement – to a new subject matter of the dispute, would not correspond to the required natural approach and would also lead to considerable delimitation difficulties (BGH, U. v. 13.12.2012, I ZR 230/11 – GRUR 2013, 401 [Rz .23] – Biomineralwasser; with further evidence). Rather, in cases in which the action for injunctive relief under competition law is directed against the specific form of infringement, this form of infringement must be seen as the facts of life that determine the subject matter of the dispute. In this case, the action is directed against a specifically described behavior, which describes the set of facts and thus the objections to which the specific form of infringement may give rise, even from a natural point of view of the parties. If, in such a case, the plaintiff/applicant objects to an advertisement from several points of view, for example, he leaves it to the court to determine which aspect the injunction is based on if the action is successful (BGH, judgment of December 13, 2012, I ZR 230/11 – GRUR 2013, 401 [Rz .24] – Biomineralwasser; with further evidence). The subject matter of the dispute is only to be assessed differently if the plaintiff/applicant – which he is free to do – attacks several infringements realized in a specific form of infringement or with the use of a specific designation separately by way of cumulative accumulation of claims (cf. BGH, judgment of December 13, 2012, I ZR 230/11 – GRUR 2013, 401 [Rz .25] – Biomineralwasser; with further evidence).
(4) These principles shall apply accordingly in the area of the right to make statements. The prohibitions of competition according to § 4 No.9 UWG old version (prohibition of misleading statements, now §§ 5, 5a UWG new version) are also prohibitions of certain statements. From a natural point of view, it is not decisive what exact (inadmissible) statement content a statement has in the context of the respective reporting, but that it has such content.
(5) After all, it is generally not a change of the subject matter of the dispute if a plaintiff / applicant “changes” from a “bare” prohibition of a certain statement to the prohibition of creating a certain impression by this very statement.
(a) In any case, the formulation of a specific impression to be refrained from in the operative part of a prohibition is generally merely an element of the statement of grounds, with which the content of the prohibition in question is to be made clearer to the debtor; whether an impression at all – and, if so, which impression – is formulated in the application and operative part has no effect on the content of the subject matter of the dispute. This is also supported by the content of the relief sought, i.e. what the plaintiff / applicant wants to achieve. The aim of an application for injunctive relief under the law of expression is to prohibit a specific statement. This specific statement should and can only be prohibited because it creates a certain impression in the context of the publication, but the object of the prohibition is not the creation of a certain impression as such and per se. Accordingly, in such cases, the court can both bring about what it considers to be an appropriate modification of the application by means of a reference pursuant to Section 139 I 2 ZPO and, within the scope of its discretion pursuant to Section 938 I ZPO, reformulate the prohibition wording in relation to an application that is not considered appropriate.
(b) However, all this only applies if – as here – the requested prohibition is provided with the restriction “as done in” (or similar), because this makes it clear that the prohibition sought is based on the understanding of the challenged statement that results from the context in which the person making the statement has placed it.
(c) According to the principles set out above, something else must also apply if a plaintiff/applicant attacks several infringements of rights realized in a specific form of infringement separately by way of cumulative accumulation of claims. In this case, there are several matters in dispute with the consequence that the plaintiff / applicant is liable for costs if and insofar as he is unsuccessful with these different claims. Whether this is the case must be determined by interpreting the application and its grounds.
(6) Contrary to the view of the defendants, this understanding of the subject matter of the dispute in proceedings relating to the right to make statements does not conflict with the case law of the Federal Constitutional Court (BVerfG) on ambiguous statements (so-called “Stolpe case law”).
(a) According to the decision of the Federal Constitutional Court of 25.10.2005, the person making the statement can avoid a conviction by the civil court aimed at injunctive relief if he makes a serious and substantively sufficient declaration that he will not repeat the ambiguous statement from which a statement with the personality-infringing content can be inferred, or only with suitable clarifications (cf. BVerfG, B. v. 25.10.2005, 1 BvR 1696/98 – NJW 2006, 207 [Rz .35] – “IM-Sekretär” Stolpe). However, it is not clear from this decision what legal character such a “serious and substantively sufficient declaration” must have:
It is often argued that such a declaration does not have to be a declaration to cease and desist with a penalty clause, but can be made in the form of a simple declaration (see e.g. Kröner in HH-Ko/MedienR, 3rd ed., 31 para. 95 with further evidence). This is supported by the fact that the term “declaration to cease and desist” is not used at this point in the aforementioned decision of the BVerfG. In another decision, the BVerfG also pointed out that in such cases there must be an easy way to clarify and thus avert the obligation to cease and desist, whereby adverse effects on the exercise of freedom of communication are to be expected in particular if a high cost burden would be imposed on the person who made an ambiguous statement, even if, after recognizing the ambiguity and the personality-infringing content of an alternative interpretation, he made a clarification that excludes an infringement of personality rights (BVerfG, B. v. 19.12.2007 – 1 BvR 967/05 – NJW 2008, 1654 [Rz .34]).
However, it appears questionable whether such an understanding of the BVerfG’s decision of October 25, 2005 is mandatory. Rather, the wording in this decision can also be understood as a mere reference to the existing principles of case law on the elimination of a risk of repetition, as the BVerfG expressly pointed out in this decision that, according to case law, the person making the statement could avoid a conviction by the civil court aimed at injunctive relief by making a “serious and substantively sufficient declaration” (BVerfG, B. v. 25.10.2005, 1 BvR 1696/98 – NJW 2006, 207 [Rz .35] – “IM secretary” Stolpe). According to the wording, this can be a mere reference to the then (and still) prevailing case law on the elimination of the risk of repetition, which can generally only be achieved by means of a declaration to cease and desist with a penalty clause. Above all, however, the references cited at this point in the BVerfG’s decision of October 25, 2005 (see BGHZ 14, 163, 167 = NJW 1954, 1682; BGHZ 78, 9, 20 = NJW 1980, 2801; BGH, NJW 1994, 1281, 1283; Burkhardt in Wenzel, Das Recht der Wort- und Bildberichterstattung, 5th ed.f) exclusively those in which it is stated that an infringement of rights creates the risk of a repetition of this infringement and that strict requirements are to be placed on the rebuttal of this presumption, so that this risk of repetition can generally only be eliminated by issuing a declaration to cease and desist with a penalty clause. In the opinion of the Senate, this suggests that the BVerfG in its decision of October 25, 2005 (“IM-Sekretär” Stolpe) did not intend to restrict the principles of case law developed over decades to eliminate the risk of repetition created by an infringement.
In addition, the immediate submission of a cease-and-desist declaration with a penalty clause is a very cost-effective and simple way for the person making ambiguous statements to avoid a court injunction.
(b) However, this can ultimately be left aside for the present case, as the answer to this legal question has no effect on the subject matter of the injunction request. Rather, contrary to the opinion of the defendants, it is always one and the same subject matter of the dispute if the injunction of one and the same statement is requested in the same context, even if the injured party (initially) takes the view that this is an unambiguous factual assertion, while it is “actually” (i.e. in the opinion of the court) an ambiguous statement. This also applies if one were to follow the aforementioned view that it follows from the decision of the BVerfG of October 25, 2005 (“IM Secretary” Stolpe) that the person making an ambiguous statement can prevent himself from being ordered by the court to cease and desist by making a “serious and substantively sufficient declaration” not to repeat the ambiguous statement or only to repeat it with appropriate clarifications, even if he does not declare this in the form of a declaration to cease and desist with a penalty clause. In particular, the Senate is unable to share the view of the defendants that a prohibition on the basis of the “Stolpe case law” of the BVerfG is less far-reaching than the prohibition of an unambiguous statement, i.e. a statement that constitutes a factual assertion or creates a compelling factual impression. Rather, according to the “Stolpe case law”, a ban is a “fully-fledged” ban that the person making the statement must observe just as strictly as a ban that was not issued due to an ambiguous statement. The principles of the “Stolpe jurisprudence” result (according to the above explanations: at best) in the possibility for the person making the statement to prevent the issuance of a court ban under conditions that are easier to fulfill. However, the infringer cannot more easily obtain the revocation of a prohibition once it has been issued in accordance with these principles:
(aa) The BVerfG expressly stated in the aforementioned decision of October 25, 2005 (“IM-Sekretär” Stolpe) that there is no constitutionally viable reason to refrain from imposing an injunction merely because the statement allows for several possible interpretations (including those that lead to no or only a lesser violation of personality rights) if the person making the statement is not prepared to give the statement an unambiguous content (BVerfG, B. v. 25.10.2005, 1 BvR 1696/98 – NJW 2006, 207 [Rz .35] – “IM-Sekretär” Stolpe). The person making the statement is free to pursue his or her concerns in a manner that does not violate personal rights. If he does not see himself in a position to do so, however, he encounters the restriction of freedom of expression based on the protection of personality (BVerfG, B. v. 25.10.2005, 1 BvR 1696/98 – NJW 2006, 207 [Rz .36] – “IM Secretary” Stolpe). It is not apparent why this should entail the necessity that the person making the statement, who does not use such an opportunity for clarification as soon as possible, should still be able to remove a subsequent ban by means of such a simple clarifying declaration without submitting a declaration to cease and desist with a penalty clause. Rather, this case, which is also the case here, is to be treated no differently than the “normal case” in which an unambiguous statement violates the rights of a third party, because the person making the statement, who does not want to “clarify” after it has been made clear to him that his statement is also to be understood in a way that violates the personal rights of a third party, shows by his behavior that he is not prepared to protect the rights of the injured party in the future without judicial coercion. In such cases, the person making the statement should not be privileged. The principle that strict requirements must be applied to rebut the presumption of an existing risk of repetition remains unchanged.
(bb) Accordingly, the aforementioned decision of the BVerfG of 19.12.2007, it is based on the fact that constitutionally objectionable, detrimental effects on the exercise of freedom of communication could (only) be expected if a high cost burden would be imposed on the person who made an ambiguous statement if, after recognizing the ambiguity and the personality-infringing content of an alternative interpretation, he made a clarification that excludes an infringement of personality rights (1 BvR 967/05 – NJW 2008, 1654 [Rz .34]). However, this means that an infringer who, despite recognizing the ambiguity and the infringement of his statement, does not make such a statement immediately is not worthy of protection.
(cc) In other words: If a prohibition order is issued in accordance with the principles of the “Stolpe case law”, it does not follow from this case law that the person making the statement can eliminate the risk of repetition on which the prohibition is based by means of a clarifying declaration. Rather, it follows from the principles of this case law at most that the person making the statement can avert the issuance of a court ban by making such a statement in advance. If he does not make use of this possibility – as is the case here – he becomes the subject of a prohibition order, for which no other principles apply than for prohibitions due to unambiguous statements. Therefore, contrary to the view of the defendant, it does not follow from this aspect of the nature of a prohibition of ambiguous statements that it constitutes a different subject matter of the dispute than the prohibition of the same statement in the form of an unambiguous factual allegation.
(7) A further consequence of the concept of the subject matter of the dispute in proceedings under the law of expression understood in this way is that the injured party must clarify in a warning letter what understanding he has recognized from the reporting and why he sees this as an infringement of his interests. However, this would be a sufficient warning, namely the injured party does not necessarily have to argue that it is an ambiguous statement, and he certainly does not have to list other possible interpretations.
This consequence also corresponds to substantive justice, because – as explained – the determination of the exact meaning of a statement can lead to quite different results depending on the evaluating party’s standard of assessment and understanding of language. It would therefore be unfair to burden the injured party with the risk that he bases his warning (and application) on the “correct” understanding of the language. This applies all the more since, not only according to the case law of the Federal Constitutional Court, the person making the statement is free to make a statement which, in his opinion, takes into account the correct meaning of the challenged statement and also protects the interests of the injured party.
(8) According to these principles, the applicant has always pursued the same request with the different versions of her application under I.3. always pursued the same request.
In the warning (Annex ASt 3), the applicant stated, among other things, that the return of the confiscated € … had been ordered by a court. According to the above, the applicant has already made it sufficiently clear to the defendants in which respect she objects to this passage. It was harmless in this regard that she did not yet refer in the warning letter to the fact that it was (in any case) an ambiguous statement that was to be prohibited in accordance with the principles of the “Stolpe case law”, but only stated this in the context of the injunction proceedings in the statement of 9.10.2017. The fact that the applicant had initially applied for a “bare” prohibition of the challenged passage – i.e. without the formulation of an impression created by it – does not mean a change in the subject matter of the dispute.
e. Finally, it should be noted that, in this situation, the claim for injunctive relief asserted by the applicant with the application under I.3. is not precluded by the fact that the defendants have stated in their objection that they would only disseminate the statement in a clarifying form in future in accordance with this application. This is because – as explained above – this is not an ambiguous statement, rather the impression complained of is necessarily created by the statement in dispute. The question of whether the Federal Constitutional Court’s decision of October 25, 2005 (I BvR 1696/98) is to be understood as meaning that the “serious and substantively sufficient declaration” mentioned there is less than a declaration to cease and desist with a penalty clause can therefore be left open. Moreover, even according to the case law of the Federal Constitutional Court, as it is to be understood in the opinion of the Senate in accordance with the above explanations, such a “subsequent” clarification would not have been suitable here to remove the already established risk of repetition with regard to this statement; as explained above, such a clarification could only have had a legal effect if it had been issued immediately after the warning and not only after the interim injunction was issued.
2. the Regional Court correctly found that the proceedings with regard to the application under I.1. and ordered the defendants to pay the costs in this respect. This corresponds to equitable discretion within the meaning of § 91a ZPO, because until the defendants submitted a cease-and-desist declaration with a penalty clause and the subsequent unilateral declaration of settlement by the applicant, the applicant was entitled to a cease-and-desist claim with this content against the defendants.
a. The statement in dispute, which the applicant attacked with the application under I.1. at least creates a factual impression in the context of the reporting in question that is incorrect and is also capable of disparaging the reputation of the applicant in the public eye.
aa. In its decision of 8.11.2017 in the appeal proceedings under file number 7 W 123/17, the Senate stated that and why the statement challenged with the application under I.1. statement challenged with the application
“Investigators are investigating tax avoidance in three countries.”
is at least ambiguous in the context of the reporting, namely it can also and by no means remotely be understood in the sense that criminal investigations are being conducted in three countries against persons responsible for the applicant’s group. After further deliberation, the Senate adheres to these considerations and refers to these statements in order to avoid repetition.
bb. Whether criminal investigations are being conducted in three countries against persons responsible for the applicant’s group is a factual impression, as evidence can be taken on this. The applicant has made it credible that this is untrue, namely that this is only the case in Germany. This untrue factual allegation – or this untrue factual impression – is capable of disparaging the applicant’s public image. To avoid repetition, the Senate again refers to its statements in the decision of 8.11.2017 (case no. 7 W 123/17).
b. There was a risk of a renewed infringement of the applicant’s (company) right of personality. The infringement that took place gave rise to the risk of repetition; this is indicated by the unlawful first infringement (see BGH, judgment of February 8, 1994 – file no. VI ZR 286/93 – NJW 1994, 1281, 1283).
c. The grounds for a preliminary injunction were also present. Since the defendants have not questioned this, the Senate refrains from making any further comments on this point.
d. Also with regard to the application under I.1. the objections of the defendants derived from the concept of the subject matter of the dispute do not apply, namely the application for an interim injunction was neither inadmissible nor unfounded in this respect; the warning also met the requirements. In detail:
aa. In her warning letter (Annex ASt 3), the applicant stated that the criminal offense of “tax avoidance” did not exist, but that there were also no investigations into tax evasion in three countries. In the warning letter, she demanded the submission of a declaration to cease and desist with a penalty clause, in which the defendants were to undertake to refrain from claiming and/or having it claimed and/or disseminating and/or having it disseminated that “investigators” were investigating responsible persons of the … Group A “for tax avoidance” in three countries, as happened in the D of 25.9.2017 … under the heading “E”. In the statement of 9.10.2017, the applicant then argued that a ban should be issued in accordance with the principles of the “Stolpe case law” and alternatively applied for a ban on making an impression. The Regional Court ruled that such an impression was remote; the reader would not think of criminal investigations. In response to the applicant’s immediate appeal, the Senate then issued an injunction that corresponded to the original application for an injunction under I.1. i.e. as a prohibition of the assertion, dissemination etc. of the attacked text passage set in indirect speech. The defendants then submitted a declaration to cease and desist in which they undertook, subject to penalty, to refrain from creating the impression that persons responsible at …Group A were under criminal investigation for tax evasion in three countries (Annex AG 3); the applicant then declared this point to be settled.
bb. Contrary to the opinion of the defendants, the warning, the original version of the application, the alternative version of the application and the ultimately issued prohibition do not contain different objects of dispute, nor does the declaration of injunction issued by the defendants. As explained above, it is generally not a change in the subject matter of the dispute if a plaintiff / applicant “changes” from a “bare” prohibition of a certain statement to the prohibition of creating a certain impression by this very statement (or in the opposite direction) if the prohibition sought is related to the context in which the incriminated passage was published.
Also with regard to the application and prohibition under I.1. According to these principles, the applicant is always pursuing the same request with her warning and the various versions of her application and that the Senate has issued a prohibition that corresponds to the subject matter of the dispute. In her warning, the applicant had clarified in which respect she criticized the disputed passage, namely that the criminal offense of “tax avoidance” did not exist and that there were no investigations into tax evasion in three countries. She thus made it clear how she understood this passage. In the injunction proceedings, too, the applicant has based its argument on the fact that, in any case, criminal investigations are not being conducted in three countries against persons responsible for the applicant’s group. The different versions of the application for injunctive relief therefore merely represented different attempts to formulate the language of her unchanged claim.
Moreover, the defendants not only did not provide any “clarification” in response to the warning, but also did not address the content of the impression complained about (Annex ASt 4). As explained above, the defendants can therefore not successfully invoke the principles of the “Stolpe case law” in this respect either, because they did not immediately issue any kind of clarifying statement in response to this warning.
cc. Contrary to the view of the defendants, this result is not contradicted by the wording of the supplementary prohibition order issued by the Senate in response to the applicant’s immediate appeal. As can be seen from the above, the formulation of a “version of the impression” as a prohibitory sentence is merely a substantiating element that can be included in the operative part for reasons of clarifying the direction of the prohibition; however, this does not involve a change in the subject matter of the dispute. Rather, the subject matter of the dispute remains the specifically challenged statement in the context of the incriminated reporting. When formulating the supplementary prohibition in the decision of 8 November 2017 (7 W 123/17), the Senate therefore saw no reason to deviate from the application that the applicant had filed and pursued further with the immediate appeal, even if the form of action of the allegation may not fit exactly linguistically if it is (in any case) an ambiguous statement.
3. in part, however, the defendants’ appeal is successful with regard to the application under I.4. is successful. In the appeal instance, the defendants did not argue that the ban ultimately issued on this point – on which they submitted a final declaration – was not justified on the merits; rather, they merely raised procedural objections and in this respect objected to the first instance cost decisions. These objections are partially justified: The application under I.4. The applicant has already partially withdrawn the application under item I.4. in the first instance, so that it must be ordered to pay the proportionate costs in this respect in the first instance. The defendants’ other objections to the decision on costs in relation to this application, on the other hand, are not valid. In detail:
a. The challenge to the decision on costs in relation to the application under I.4. is not excluded in the appeal instance, nor was it excluded in the first instance. In particular, the provision of Section 99 I ZPO did not and does not preclude a review of the decision on costs.
The provision of Section 99 I ZPO does not block the isolated attack on costs if no complaint, appeal or revision is admissible in the main proceedings; this applies in particular if the court’s decision on the merits can only be challenged, for example, with an objection, opposition or reminder (Flockenhaus in Musielak / Voit, ZPO, 15th ed., Section 99 para.5; Zöller / Herget, ZPO, 31st ed., Section 99 para.3). Here, the defendants in the first instance injunction proceedings had (among other things) filed an objection to costs with regard to the application under I.4. which was therefore admissible. In addition, they also challenged the interim injunction (in part) on the merits; the defendants were therefore able to submit the costs decision (a fortiori) as a whole for review by the Chamber.
In the appeal instance, a review of the entire first instance costs decision is also possible here, as the lodging of an appeal limited to individual main rulings also enables a correction of the costs decision (see Zöller / Herget, ZPO, 31st edition, Section 99 para. 4). Here, the defendants have appealed against the main ruling of the Regional Court in relation to the application under I.3. (confirmation of the preliminary injunction on this point) lodged an appeal.
b. The decision on costs at first instance is incorrect with regard to the application under I.4. is incorrect. The applicant has already partially withdrawn the application under I.4. in the first instance, which should have been taken into account in accordance with §§ 269 III, 92 I ZPO to the detriment of the applicant.
In the initial notification (Annex ASt 2), the passage challenged in the application under I.4. challenged in the application:
“The purchase of J in September 2016 seems similarly curious (…). At the beginning of June, H resigned as auditor of J.”
In the application for an injunction dated 27.9.2017, the applicant formulated the impression which, in its opinion, was created by this reporting and which was to be prohibited in such a way that H had been mandated by the applicant as an auditor and had (later) returned the mandate issued by A. Most recently – in a written submission dated October 11, 2017 – the applicant applied for the following prohibition order in the first instance,
… to assert and/or have asserted and/or disseminated and/or have disseminated,
“At the beginning of June, H resigned as auditor of J.”
This application was less far-reaching than the original application for an injunction under item I.4. because the applicant had attacked two different factual impressions with this application. However, the applicant did not seek a ban on the factual impression, which in the applicant’s view was also created by the reporting, that it was the applicant who had mandated H as the auditor of the company. J with the modified application in accordance with the statement of 11.10.2017.
This constitutes a partial withdrawal of this application. As explained above, there are different matters in dispute if a plaintiff/applicant attacks several infringements realized in a specific form of infringement separately by way of cumulative accumulation of claims (cf. BGH, judgment of December 13, 2012, I ZR 230/11 – GRUR 2013, 401 [Rz .25] – Biomineralwasser; with further evidence). This was the case here in the original application for an injunction under I.4. as the applicant had expressly requested the prohibition of two different factual impressions.
c. The Senate estimates the value of the withdrawn part of the application under I.4. is estimated by the Senate at its reasonable discretion (Section 3 ZPO) to be half of the total value of this application at first instance. Since the application under item I.4. was to be valued at a total of € 30,000 in the first instance in accordance with the determination by the Senate in the decision of 8.11.2017 (7 W 123/17), the defendant’s share of the first instance victory is increased by € 15,000, which results in the parties’ first instance cost ratios as shown in the operative part.
d. With regard to the application under I.4. the further objections of the defendants derived from the concept of the subject matter of the dispute do not apply. Contrary to the view of the defendants, the warning letter as well as the original and the last version of the application do not contain different objects of dispute with regard to the ultimately prohibited part of the challenged passage, irrespective of whether the requested prohibition was formulated as a “simple” prohibition of a certain statement or as a prohibition of an impression created by this statement. As explained above, it is generally not a change in the subject matter of the dispute if a plaintiff / applicant “changes” from a “bare” prohibition of a certain statement to the prohibition of creating a certain impression by this very statement (or in the opposite direction) if the prohibition sought is related to the context in which the incriminated passage was published.
According to these principles, the applicant also pursued the same request with regard to the non-withdrawn part of the application and prohibition under I.4. with her warning and the various versions of her application. In this respect, it has already clarified in its warning in which respect it criticizes the disputed passage. In the injunction proceedings, the applicant also referred to the fact that H had not returned his mandate as auditor of Fa. J had not resigned. The different versions of the application for injunctive relief therefore also only represented different attempts to formulate the language of her unchanged claim.
III.
The decision on costs for the appeal proceedings follows from Sections 92 II, 97 I ZPO. The share of the defendant’s victory in the appeal proceedings is relatively small in relation to the total value of the appeal proceedings (€ 35,000), namely only half of the cost item with regard to the application under I.4; the share of the defendant’s victory in the appeal instance thus only concerns a value of around € 2,500, i.e. a share of well under 10%.