Tenor:
(1) The Senate intends to dismiss the plaintiff’s appeal by order without an oral hearing.
2 The plaintiff has the opportunity to comment within four weeks. However, he should also consider withdrawing the appeal.
3. the motion to stay the appeal proceedings until the decision on the defendant’s appeal against the default judgment of the Regional Court of Görlitz, Bautzen External Chamber, dated March 22, 2019 is rejected
4 The Senate intends to set the amount in dispute for the appeal proceedings at € 5,150.
Reasons:
A.
The plaintiff is claiming against the defendant for the deletion of a … post on March 31, 2008 and the blocking of his account by setting it to read-only mode, for a declaration of illegality, activation of the post, provision of information, material and immaterial damages and reimbursement of out-of-court legal fees. Above the subtitle “Nüscht wie Neger” and with the comment “Those were the days when the now centrally controlled German state television still reported neutrally and showed such wonderful series. P.S.: I wonder when it will be deleted… but then the politicians would be denying themselves.” he had shared a link to a film clip from the 1970s television series “Ein H…” at www…..com, in which the word “Neger” is used several times. The Regional Court ordered the defendant to reactivate the post by way of a default judgment and found that the deletion/blocking was unlawful. In response to the defendant’s admissible objection, it scheduled a hearing for September 11, 2019. It rejected the remaining claims. The appeal was lodged against this, arguing in particular that the post was so extensively protected under constitutional law as a permissible expression of opinion that its deletion and the temporary blocking of the user account triggered extensive claims for information and damages.
B.
The Senate intends to dismiss the admissible appeal pursuant to Section 522 para. 2 ZPO without an oral hearing by means of a – unanimous – decision. The plaintiff’s admissible appeal clearly has no prospect of success in the matter. The case is neither of fundamental importance nor does the further development of the law or the safeguarding of uniform case law require a decision by the court of appeal by means of a judgment. Other reasons also do not require an oral hearing. A suspension of the appeal proceedings acc. § Section 148 ZPO is out of the question. The proceedings before the Regional Court regarding the defendant’s objection to the default judgment of 22.3.2019 are not prejudicial. The claims asserted in the appeal do not exist even if the defendant’s objection is rejected and the default judgment becomes final.
I.
The Regional Court rightly denied the plaintiff’s claim for information as to whether the block imposed on him was carried out by a “commissioned company”. In the absence of a special legal basis, such a claim for information can only be considered under Section 242 BGB. According to the established case law of the Federal Court of Justice, a claim for information from the point of view of good faith is given if the legal relationships existing between the parties mean that the claimant is in an excusable state of uncertainty about the existence or scope of his right and if the obligor is in a position to provide the information required to eliminate this uncertainty without difficulty (see BGH, judgment of July 17, 2002 – VIII ZR 64/01, NJW 2002, 3771 under II. 1. with further references). Under these conditions, a claim for the provision of information is also given if it is not the claimant himself but a third party who is the debtor of the main claim, the enforcement of which is to enable the auxiliary claim for the provision of information (BGH, judgment of July 9, 2015 – III ZR 329/14 – juris). There are no data protection concerns regarding the provision of information pursuant to Section 24 para. 1 No. 1 BDSG, provided that the provision of information is necessary for the assertion, exercise or defense of civil law claims. However, the general right to information in good faith is itself limited by Section 242 BGB. Its assertion is therefore an abuse of rights if the information is not relevant to the claim in question in any respect or if the creditor requests it for “improper purposes” (Staudinger/Olzen/Looschelders (2015) BGB Section 242, para. 608; Palandt-Grüneberg BGB, 78th ed. § Section 259 para. 9; Soergel/M Wolf Section 260 para. 61 ff).
This is the situation here. Even if one assumes – for which the plaintiff has not provided any evidence – that the deletion of the disputed post was not carried out by employees of the defendant, but by a service provider on its behalf, claims against this service provider could not be considered from any legal point of view. Claims under Section 241 BGB in conjunction with the … user agreement or under Section 280 BGB could not be asserted by the plaintiff against this third party in the absence of a special contractual relationship. Contrary to what the Munich Regional Court casually assumed in the final judgment of 21.12.2018 (28 O 5492/18) submitted by the plaintiff, claims under Section 826 BGB are also ruled out in such a case. Irrespective of the fact that it is not clear what damage the plaintiff claims to have suffered here and what he would like to claim from the third party to be named, a claim under Section 826 BGB requires conduct that is objectively immoral and of a particularly reprehensible nature. According to general opinion, this only includes conduct which, in terms of its content and overall character, offends the sense of decency of all fair and just thinkers, i.e. is incompatible with the fundamental values of the legal and moral order (cf. instead of all Palandt-Sprau, loc. cit. § 826 Rn 4). The fact that a behavior violates a contractual obligation is not sufficient for this.
Such an accusation cannot even be made against the defendant itself in connection with the deletion of the post in question. This is – as the Senate has ruled in accordance with the prevailing case law and literature (OLG Karlsruhe, decision of June 25, 2018 – 15 W 86/18 -, juris; OLG Munich, decision of September 17, 2018 – 18 W 1383/18 -, juris; Elsaß/Labusga/Tichga). September 2018 – 18 W 1383/18 -, juris; Elsaß/Labusga/Tichy, CR 2017, 234; for further information on overblocking, see Holznagel, CR 2018, 369) (Senate decision of August 8, 2018 – 4 W 577/18 -, juris), on the basis of its community agreement, which is unobjectionable pursuant to Sections 305 et seq. BGB (German Civil Code) in the version also applicable here, to delete and block posts that constitute “hate speech”, provided that it is ensured that these sanctions are not imposed arbitrarily and that users are not blocked prematurely and permanently. Whether this is the case is subject to a case-by-case assessment. In view of the balancing of the user’s freedom of expression and the public interest expressed in the community standards, which necessarily precedes such a decision, as well as the large number of review processes to be carried out daily for this purpose, it is obvious that not every deletion of a post can stand up to subsequent judicial review, especially since the community standards themselves are so broadly defined that their content can sometimes only be determined by interpretation (e.g. hate speech, bullying and harassment). However, since the deletion of posts that are inadmissible according to the community standards is generally not objectionable, the deletion of posts with obviously unlawful content within the meaning of the NetzDG is subject to Section 3 para. 2 No. 1 NetzDG, the exercise of these powers does not constitute intentional immoral damage to the affected user that could justify a claim under Section 826 BGB, even if the measures taken prove to be unlawful in individual cases. A fortiori, such an accusation is not justified against a person who is used by a social network as a service provider and is therefore merely a vicarious agent within the meaning of Section 831 BGB without, however, pursuing their own interests by deleting or blocking participants. This would only be different if the defendant could be accused of systematically discriminating against individual users by abusing its formal legal position with the aim of ultimately excluding them from its network. However, there is no evidence of this in the plaintiff’s submission.
II.
There is also no right to information about possible instructions “from the federal government or subordinate agencies regarding the deletion of posts and/or the blocking of users”. The requests for action for social network operators triggered by the NetzDG can be found in the text of the law. No evidence of any further influence in specific individual cases is claimed. The assumption that the Federal Government or another public administration body influenced the defendant to block the plaintiff’s post, including the link contained therein to the excerpt of an episode of “Ein H…” from the 1970s, is also clearly far-fetched and is more likely to be linked to conspiracy theories spread in relevant circles on the Internet. The assertion of a claim for information with the aim of forcing a statement from the person against whom a claim is made about unsubstantiated allegations is inadmissible as a case of abuse of rights.
III.
Finally, a claim for payment of € 150 is also ruled out, irrespective of whether the blocking/deletion due to the disputed statement proves to be lawful in the proceedings on the defendant’s objection. There is no basis for such a claim for payment.
1. the claim for non-material monetary compensation derived from Art. 1, 2 para. 1 GG does not apply to every violation of the general right of personality, and certainly not to every breach of contract. Rather, it presupposes a serious encroachment on the general right of personality, the impairment of which cannot be satisfactorily compensated for in any other way. The decision as to whether there is a sufficiently serious infringement of the right of personality depends in particular on the significance and scope of the infringement, as well as the cause and motivation of the person acting and the degree of fault (Senate, judgment of January 30, 2018 – 4 U 1110/17 -, para. 4, juris with further evidence). The plaintiff has not been able to plausibly demonstrate that he suffered such an impairment as a result of the deletion of the post and the temporary transfer of his account to read-only mode (according to the default judgment for two days, according to his assertion in the appeal for three days, according to the defendant in the statement of objection even for only 24 hours); this does not seem conceivable either. The restrictions associated with the temporary exclusion from active use affect his personal rights at most in the social sphere. Since the blocking is not publicly communicated and, moreover, was not imposed by a state authority but merely by a legal entity under private law, there is no serious fear of a pillorying effect. The plaintiff also assesses the immaterial loss resulting from this at only € 150 and thereby indicates that he himself does not consider the defendant’s conduct to be sufficiently serious. According to the established case law of the Senate (Senate loc. cit.; judgment of February 13, 2018 – 4 U 1234/17 -, juris), the minimum lower limit for monetary compensation is € 2,500. Below this minimum lower limit, it can generally be assumed that the required sufficient severity of interference has not been exceeded.
2. the plaintiff cannot assert claims for a fictitious license fee under Section 812 BGB either. Whether the defendant actually used his personal data for advertising purposes during the period of blocking can be left open. In any case, according to his own submission in the statement of claim, the plaintiff had given his consent to the authorization stipulated in the terms of use to “permanently store and use” all posts and data received. He had not declared a reservation for the period of any blocking. According to all of the above, there is no unlawful use of data protected by general personal rights. The necessary prerequisites for fictitious damages according to the principles of license analogy are also lacking. The submission in the statement of claim that the plaintiff lost a sales transaction in the specific case “due to the non-usability of the short message service” is not sufficient for a claim for damages pursuant to Sections 280, 241 BGB in conjunction with the license agreement.
3. finally, the claims asserted pursuant to Art. 82 para. 1 GDPR are also excluded. Any person who has suffered material or non-material damage as a result of a breach of this Regulation is entitled to compensation from the controller.
a) In the present case, it is already doubtful whether Art. 82 GDPR applies to the deletion that took place on 31.3.2018 and the blocking that ended on 1.4.2018 at the latest. According to Art. 99 para. 2 GDPR, this only applies directly in all member states from May 25, 2018. It follows from Art. 99 in conjunction with recital 171 sentence 3 of the GDPR that it will apply without restriction from this date and that all processing operations that have already begun at this time should be brought into line with the Regulation within two years of its entry into force (May 24, 2016, see Art. 99 para. 1 GDPR). From this point in time, the Regulation supersedes national laws in its scope of application (cf. on the precedence expressly § 1 para. 5 BDSG in the version of the Act on the Adaptation of Data Protection Law to Regulation (EU) 2016/679 and on the Implementation of Directive (EU) 2016/680 of June 30, 2017, BGBl. I, p. 2097; BGH, judgment of July 12, 2018 – III ZR 183/17 -, para. 66, juris). The standard for reviewing claims for future actions is therefore the legal situation at the time of the last oral hearing (BGH loc. cit.). However, unlike a claim to cease and desist from blocking or activating an account, the claim asserted here under Art. 82 GDPR is linked to a past and fully concluded situation that occurred before the GDPR came into force
b) However, this can also be left aside because the requirements for a claim under Art. 82 GDPR are not met anyway. The deletion of the post and the blocking of the plaintiff’s account does not constitute a breach of mandatory provisions of the GDPR. Collection and processing of his data, for which acc. Art. 4 No. 2 GDPR, including the deletion of the disputed post and the blocking of his account, are based – as explained – on the plaintiff’s prior consent to the defendant’s terms of use (Art. 6 para. 1 lit. a GDPR). This is not linked to the defendant also fulfilling its contractual obligations and therefore also includes periods in which the account is blocked (also Regional Court of Cologne, judgment of 24.1.2019, 24 O 201/18 submitted by the plaintiff as an annex to the grounds of appeal).
Moreover, the Senate cannot recognize that the plaintiff would have suffered material or immaterial damage within the meaning of Art. 82 GDPR as a result of the blocking. The mere blocking of his data, like the loss of data, does not constitute damage within the meaning of the GDPR (Wybitu/Haß/Albrecht, NJW 2018 p. 113 (114). The alleged inhibition of the development of personality by the three-day blocking is of a trivial nature at best (see above). Even if the literature, with reference to recital 146 of the GDPR, occasionally takes the view that effective enforcement of European data protection law requires a deterrent effect and the waiver of the materiality threshold applicable under previous law (see BGH, judgment of 29.11.2016 – VI Z 530/15) (Gola, DSGVO, 2nd ed. Art. 82 para. 13 with further references; see also AG Dietz, judgment of 7.11.2018 – 8 C 130/18 -juris), this does not justify compensation for immaterial trivial damage. Data protection law protects a subjective right per se, which has a strong connection to the personal feelings of the individual. Nevertheless, Art. 82 is not to be interpreted in such a way that it justifies a claim for damages for every individually perceived inconvenience or for trivial infringements without serious impairment of a person’s self-image or reputation (Becker in: Plath, DSGVO/BDSG, 3rd ed. 2018, Article 82 GDPR, para. 4c). In particular, the reference to “full and effective compensation” in recital 146 of the GDPR cannot be understood in this sense (see also Lach, jurisPR-ITS 5/2019 note 3). The protection of the right to informational self-determination as part of the general right of personality pursuant to Art. 2 para. 1 GG and the protection of personal data under Art. 8 GRC do not generally require such a balance. This may be different in cases where the breach of data protection law affects a large number of people in the same way and is an expression of deliberate, unlawful and large-scale commercialization (Becker in: Plath, DSGVO/BDSG, 3rd ed. 2018, Article 82 GDPR, para. 4d). However, this is not the case here. Although the commercialization of user data is part of the defendant’s business model, the blocking of the plaintiff’s account does not promote this commercialization, but rather hinders it because the plaintiff does not “produce” any data during this time that the defendant could exploit. The considerable risk of abuse, which would be associated with the creation of an almost unconditional claim for damages for pain and suffering on the legal consequences side, especially in the area of data protection law, also speaks against an extension of immaterial damages to minor damages. In view of this and the resulting complete departure from the current legal situation, it would have been expected that such a change would have been clearly expressed in the text of the regulation or in the recitals. However, this is not the case.
After all this, the Senate advises withdrawing the appeal, which saves two court fees.
(OLG Dresden reference decision of 11.6.2019 – 4 U 760/19, BeckRS 2019, 12941, beck-online)