The VI Civil Senate of the Federal Court of Justice, which is responsible for the law of tort. The VI Civil Senate of the Federal Court of Justice, which is responsible for tort law, had to decide whether a person whose right of personality had been infringed could claim information from the operator of an internet portal about the registration data of the infringer deposited with the operator.
The plaintiff, a freely practising doctor, asserted a claim for information against the defendant. The defendant is the operator of an internet portal that enables ratings of doctors.
In November 2011, the plaintiff discovered a review on the defendant's website in which various untrue allegations were made about him. In June 2012, further evaluations concerning the plaintiff were published with untrue factual allegations. At his request, the reviews were deleted by the defendant in each case. On 4 July 2012 (in any case) another review with the contents already objected to by the plaintiff appeared until November 2012.
The Regional Court ordered the defendant to cease and desist from disseminating the allegations complained of by the plaintiff and to provide information about the name and address of the author of the evaluation of 4 July 2012. The defendant's appeal against this was unsuccessful. The Upper District Court affirmed the plaintiff's claim for information against the defendant because of the infringer's registration data deposited with the defendant pursuant to §§ 242, 259, 260 BGB. § Section 13(6) sentence 1 of the German Telemedia Act (TMG), according to which a service provider must enable the use of telemedia anonymously or under a pseudonym, insofar as this is technically possible and reasonable, did not exclude the general claim to information.
In its appeal, which was allowed by the Higher Regional Court limited to the claim for information, the defendant continued to pursue its motion to dismiss the action - to the extent of the allowance.
The appeal was successful. The Federal Supreme Court dismissed the action for the provision of information.
In the absence of a statutory basis for authorisation within the meaning of Section 12 (2) TMG, the operator of an internet portal is generally not authorised to transmit the user's personal data to the person concerned without the user's consent in order to fulfil a claim for information due to a violation of personality rights.
According to the requirement of strict purpose limitation in Section 12 (2) of the German Telemedia Act, personal data collected for the provision of telemedia may only be used for other purposes if a legal provision permits this or the user - which was not at issue here - has consented. Use within the meaning of Section 12 (2) TMG also constitutes transmission to third parties. According to the wording of the law, permission by legal provision can only be considered outside the Telemedia Act if such a provision expressly refers to telemedia. The legislator has so far - deliberately - not created such a provision.
However, the person affected by contents of a website that violate personal rights may be entitled to injunctive relief against the service provider (cf. Senate decision of 25 October 2011 - VI ZR 93/10, BGHZ 191, 219), which the Higher Regional Court also affirmed in the case at issue. In addition, the service provider may provide information on inventory, usage and billing data according to § 14 para. 2, § 15 para. 5 sentence 4 of the German Telemedia Act (TMG) upon order of the competent authorities in individual cases, insofar as this is necessary, inter alia, for the purpose of criminal prosecution.
Judgment of the BGH of 1 July 2014 - VI ZR 345/13
Lower courts:
Stuttgart Regional Court - Judgment of 11 January 2013 - 11 O 172/12
Stuttgart Higher Regional Court - Judgment of 26 June 2013 - 4 U 28/13
Source: Press release of the Federal Supreme Court
Goldberg Attorneys at Law 2014
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
