In an appeal on points of law, the Federal Court of Justice (BGH) addressed the question of whether the victim of an alleged violation of personal rights can demand information about the alleged perpetrators from a service provider under Section 14 (3), (4) of the Telemedia Act (TMG).
What was the issue?
The applicant in the appeal on points of law seeks information from Facebook Inc. regarding existing data of three users. These three users, although not via the platform www.facebook.com, sent various text messages, among other things, to friends and family members of the applicant via Facebook Messenger. According to the applicant, these text messages contain offensive content and untrue factual allegations about the applicant.
The applicant unsuccessfully sought an order from the Frankfurt am Main Regional Court to permit Facebook Inc. to provide the applicant with information about the existing data of the user accounts in question. The Frankfurt am Main Higher Regional Court dismissed the applicant's appeal against this decision. It justified its decision, inter alia, by stating that the scope of application of Section 14 (3) TMG in conjunction with Section 1 (3) of the Network Enforcement Act (NetzDG) was not open. The Facebook Messenger, it argued, does not constitute a social network.
With the admitted appeal on points of law, the applicant continues to pursue her request for permission.
How did the BGH rule?
The BGH ruled in favor of the applicant and, among other things, determined that Section 14 (3) TMG applies to all service providers as defined in Section 2 Sentence 1 No. 1 TMG. It referred the case back to the Frankfurt am Main Higher Regional Court to make findings. It has not yet been determined whether, when, and to whom content was sent from the user accounts in dispute. Furthermore, it must be examined whether the content was unlawful under Section 1 (3) NetzDG at all, and thus whether the applicant is entitled to a claim for information.
Procedural and Delimitation Issues
The BGH first had to address extensive procedural and delimitation issues. The BGH deemed the appeal on points of law admissible in light of European procedural law. Furthermore, the BGH affirmed the precedence of the TMG over the corresponding regulations in the GDPR and the BDSG. Finally, the BGH decided that, given the current factual situation, the present case did not need to be referred to the ECJ for a preliminary ruling.
Core of the Decision
At its substantive legal core, the BGH addressed the legal view of the Frankfurt am Main Higher Regional Court as to whether Section 14 (3) TMG only covers service providers who operate social networks within the meaning of Section 1 (1) NetzDG.
According to Section 14 (3) TMG, the service provider may provide information about existing data held by them, insofar as this is necessary for the enforcement of civil law claims due to the infringement of absolutely protected rights based on unlawful content covered by Section 1 (3) NetzDG. A service provider, according to Section 2 Sentence 1 No. 1 TMG, is any natural or legal person who provides their own or third-party telemedia for use or mediates access to their use.
According to the BGH, Section 14 (3) TMG is not limited to social networks within the meaning of the NetzDG but applies to ALL service providers within the meaning of Section 2 No. 1 TMG. The wording of Section 14 (3) TMG is not unambiguous, making its interpretation crucial. The purpose and intent of the provision, its legislative history, and its systematic position support an interpretation that the provision covers all service providers within the meaning of Section 2 Sentence 1 No. 1 TMG.
The reason for the amendment of Section 14 (2), (3) TMG was the BGH's 2014 rejection of a data subject's claim for information against the operator of a doctor review portal. The BGH had stated in its reasoning that providing information was legally impossible because no corresponding data protection authorization basis existed. The legislature was encouraged to create such an authorization basis. During the legislative process, Section 14 (3) was merely restricted, at the suggestion of the Bundesrat, to the effect that only the commission of a criminal offense listed in Section 1 (3) NetzDG should trigger the claim for information. Otherwise, however, the claim for information should extend to all service providers within the meaning of the Telemedia Act.
Furthermore, according to the BGH, the systematic position of Section 14 (3) TMG also supports the view that it should cover all service providers within the meaning of Section 2 Sentence 1 No. 1 TMG. If the provision were limited to the scope of application of the NetzDG, it would have been more logical to place it systematically within that act.
What does the decision mean for affected parties?
The decision is good news for affected parties, although it can only be described as a 'stage victory.' Portal or forum operators can, in any case, no longer reject a request for information under Section 14 (3) TMG by arguing that they are not operators of a social network within the meaning of Section 1 (1) Sentence 1 NetzDG.
Furthermore, at least the conditions set forth in Section 1, Paragraph 3 of the NetzDG must be satisfied, specifically the commission of a criminal offense as enumerated in Section 1, Paragraph 3 of the NetzDG.
Source: Decision of the Federal Court of Justice dated September 24, 2019, Ref. No. VI ZB 39/18
Lower Courts:
Higher Regional Court of Frankfurt am Main, Decision dated September 06, 2018, Ref. No. 16 W 27/18
Regional Court of Frankfurt am Main, Decision dated April 30, 2018, Ref. No. 2-3 O 430/17
GoldbergUllrich Attorneys at Law 2019
Julius Oberste-Dommes LL.M. (Information Law)
Lawyer and specialist attorney for information technology law
