The Sixth Civil Senate of the Federal Court of Justice, responsible for tort law, had to decide whether a person whose personal rights have been violated can claim information from the operator of an internet portal regarding the registration data of the infringing party stored with them.
The plaintiff, a self-employed physician, asserted a claim for information against the defendant. The defendant operates an internet portal that enables doctor reviews.
In november 2011, the plaintiff discovered a review on the defendant's website containing various false statements about him. In June 2012, further reviews concerning the plaintiff, containing false factual claims, were published. At his request, the defendant deleted each of these reviews. On July 4, 2012, another review with content previously objected to by the plaintiff reappeared (at least) until november 2012.
The Regional Court ordered the defendant to cease disseminating the statements objected to by the plaintiff and to provide information about the name and address of the author of the review from July 4, 2012. The defendant's appeal against this decision was unsuccessful. The Higher Regional Court affirmed the plaintiff's claim for information against the defendant regarding the infringer's registration data stored with her, pursuant to Sections 242, 259, 260 of the German Civil Code (BGB). Section 13 (6) sentence 1 of the German Telemedia Act (TMG), which stipulates that a service provider must enable the use of telemedia anonymously or pseudonymously, insofar as this is technically possible and reasonable, does not exclude the general claim for information.
With the appeal, which was admitted by the Higher Regional Court, limited to the claim for information, the defendant further pursued its request for dismissal of the action – to the extent of the admission.
The appeal was successful. The Federal Court of Justice dismissed the claim for information.
In the absence of a legal basis for authorization within the meaning of Section 12 (2) of the German Telemedia Act (TMG), the operator of an internet portal is generally not authorized to transmit a user's personal data to the affected party to fulfill a claim for information regarding a personal rights violation, without the user's consent.
According to the principle of strict earmarking under Section 12 (2) TMG, personal data collected for the provision of telemedia may only be used for other purposes if a legal provision permits this or the user has consented – which was not the case here. "Use" within the meaning of Section 12 (2) TMG also constitutes a transmission to third parties. Permission by legal provision outside the Telemedia Act is only conceivable, according to the literal wording of the law, if such a provision explicitly refers to telemedia. The legislator has – deliberately – not yet created such a provision.
However, the person affected by content on an internet page that infringes personal rights may have a claim for injunctive relief against the service provider (cf. Senate judgment of October 25, 2011 – VI ZR 93/10, BGHZ 191, 219), which the Higher Regional Court also affirmed in the present case. Furthermore, according to Section 14 (2), Section 15 (5) sentence 4 of the Telemedia Act (TMG), the service provider may, upon order of the competent authorities in individual cases, provide information on inventory, usage, and billing data, insofar as this is necessary, inter alia, for purposes of criminal prosecution.
Judgment of the Federal Court of Justice of July 1, 2014 – Ref. No.: VI ZR 345/13
Lower Courts:
Regional Court Stuttgart – Judgment of January 11, 2013 – 11 O 172/12
Higher Regional Court Stuttgart – Judgment of June 26, 2013 – 4 U 28/13
Source: Press release of the Federal Court of Justice
Goldberg Attorneys at Law 2014
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
