The Federal Court of Justice (BGH) has dealt with the question appeal proceedings with the question of whether the victim of an alleged alleged violation of personality rights from a service provider pursuant to section 14 (3) and (4) of the German Telemedia Act (TMG), whether the victim of an alleged can demand information about the alleged perpetrators.
What was it about?
The applicant in the appeal proceedings is seeking Information on the inventory data of three users held by Facebook Inc. Although these three users did not use the platform www.facebook.com, they did send various text messages to friends via the Facebook Messenger, among other things, to send various text messages to friends and and family members of the applicant. These text messages contain insulting content and untrue statements of fact about the applicant. statements of fact about the applicant.
The applicant requested the Regional Court of Frankfurt am unsuccessfully to allow Facebook Inc. to provide the applicant with information about the about the inventory data of the user accounts in question. The Frankfurt am Main Higher Regional Court dismissed the applicant's appeal against this. dismissed the applicant's appeal. It based its decision, inter alia, on the fact that the scope of application of Section 14 subsec. 3 TMG in conjunction with Section 1 subsec. 3 Network Enforcement Act (NetzDG) did not apply. The Facebook Messenger did not constitute a social network.
With the admitted appeal on a point of law, the applicant the applicant continues to pursue her application for permission.
What was the BGH's decision?
The Federal Court of Justice ruled in favour of the applicant and found, inter alia, that Section 14 subsec. 3 TMG applies to all service providers pursuant to section 2 sentence 1 no. 1 TMG. It referred the legal dispute back to the Higher Regional Court of Frankfurt am Main to make findings. It has not yet been whether, when and to whom content was sent from the user accounts in question. were sent from the user accounts in question. Furthermore, it must be examined whether the content is illegal at all. content pursuant to § 1 para. 3 of the NetzDG and whether the applicant is therefore entitled to is entitled to information at all.
Procedural and delimitation issues
The BGH first had to deal with extensive procedural and and delimitation issues. The BGH considered the appeal on points of law to be admissible against the background of European procedural law. Furthermore, the the BGH affirmed that the TMG takes precedence over the corresponding regulations in the the GDPR and the BDSG. Finally, the BGH ruled that the case at hand was case should not be submitted to the ECJ in the context of a preliminary ruling procedure. ECJ in the context of a preliminary ruling procedure.
Core of the decision
In the In the core of substantive law, the BGH dealt with the legal opinion of the Higher Regional Court of Frankfurt am Main as to whether Section 14 (3) TMG only covers only covers service providers that operate social networks within the meaning of Section 1 para. operate.
According to § Section 14 (3) of the German Telemedia Act (TMG), the service provider may provide information data, insofar as this is necessary to enforce claims under civil law. civil law claims due to the infringement of absolutely protected rights due to illegal content covered by Section 1 (3) of the Network Data Protection Act (NetzDG). According to Section 2 sentence 1 no. 1 of the German Telemedia Act (TMG), a service provider is any natural or legal person who person who provides his or her own or third-party telemedia for use or arranges access to use. provides access to the use thereof.
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 clear, so that it depends on its interpretation. The meaning and purpose of the provision, the history of its origins and its systematic position speak in favour of an interpretation to the effect that all service providers within the meaning of Section 2 sentence 1 no. 1 TMG are covered by the provision.
The reason The amendment of Section 14 (2) and (3) of the German Telemedia Act (TMG) was prompted by the BGH's rejection in 2014 of an injured party's claim for information by an injured party against the operator of a doctor rating portal. The BGH had explained that the provision of information was legally information was legally impossible, because there was no corresponding data protection law did not exist. The legislature should create this legislature to create such a basis. In the legislative process, Section 14 (3) was only amended of the Bundesrat to the effect that only the realisation of one of the of a criminal offence listed in section 1 (3) of the NetzDG should trigger the shall trigger the right to information. In all other respects, however, the right to information is to extend to all service service providers within the meaning of the Telemedia Act.
Furthermore According to the Federal Court of Justice, the systematic position of Section 14 (3) of the German Telemedia Act, that it should cover all service providers within the meaning of Section 2 sentence 1 no. 1 TMG. If the provision had been limited to the scope of application of the NetzDG, it would have been more it would have been more logical to systematically place it there.
What does the decision mean for Those affected?
The decision is good news for those affected, although it can only be described as a "stage can only be described as a "partial victory". In any case, portal or forum operators can no longer a request for information pursuant to Section 14 (3) TMG with the argument that they are with the argument that they are not operators of a social network within the meaning of section 1 para. 1 sentence 1 of the NetzDG.
Furthermore at least the requirements of Section 1 (3) NetzDG must also be fulfilled, namely the realisation of one of the criminal offences listed in § 1 para. offence listed in § 1 para. 3 NetzDG.
Source: Federal Court of Justice decision dated 24.09.2019, ref. no. VI ZB 39/18
Lower courts:
OLG Frankfurt am Main, Order of 06.09.2018, Ref. 16 W 27/18
LG Frankfurt am Main, order of 30 April 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
