The plaintiff is suing the defendant sports association for an injunction against the publication of an entry on its homepage.
The plaintiff is a member of a sports club based in Southern Baden and serves as the team manager for its 2nd Bundesliga team. During a youth league match involving a team from the club, where a club player was injured, a verbal altercation occurred between the plaintiff, who intended to attend to the injured player, and the opposing team's coach, during which the plaintiff slapped the coach. Subsequently, the disciplinary committee of the competent sports association imposed a fine of €100.00 on the plaintiff for the physical altercation and banned him from exercising any official activity, inter alia, within Baden-Württemberg until April 30, 2009.
On the association's homepage, which also publishes a list of imposed match bans, an entry was included, mentioning the plaintiff by name, stating:
“14.04.2008 …… Youth League Violent assault on visiting team's coach Suspension until 30.04.2009 (for the exercise of official activities) + Fine”
The publication of such penalty overviews on the homepage of the federation is expressly intended in the competition regulation there.
The plaintiff considers the publication to be inadmissible. He has submitted that he discovered it on the Internet on 18.04.2008 during a search on an Internet search engine. He considers the entry on the website to be an unlawful encroachment on his general right of personality because his name is mentioned there in connection with his home club, so that he is identifiable. Such reporting is not permissible, however, because the cause of the blocking may not be broadcasted in public. The defendants argued that the plaintiff was not entitled to injunctive relief because he had consented to the use of data on the website in accordance with the association's bylaws. In addition, there was no unlawful interference with his general right of personality because the association was required to provide its members and participants with comprehensive information about incidents in the leagues and to inform them about existing suspensions.
The Regional Court of Freiburg dismissed the application for a temporary injunction in its judgment of September 16, 2008. The plaintiff's appeal was also unsuccessful.
The interpretation or publication of a list of names is in principle subject to the scope of protection of the fundamental right of freedom of opinion. According to the established case law of the Federal Constitutional Court, the admissibility of a statement in the conflict between freedom of opinion and the general right of personality depends essentially on whether it is a value judgment or a factual assertion. In the present case, it was a question of a factual assertion corresponding to the truth. As a rule, however, true statements must be accepted, even if they are detrimental to the person concerned. It is obvious that the sanctions imposed by the disciplinary committee affect not only the persons concerned and their respective clubs, but also other clubs and those involved in the game in the leagues, and that they must therefore be given the opportunity to find out about current suspensions. A publication on the homepage is the most practical way to inform about the current suspensions. It was not recognizable that the publication had been suitable for causing the plaintiff considerable damage to his personality, since such a publication - unlike reporting in the press or even on television - did not have a particularly broad effect. In fact, only those persons received information about the plaintiff who became active on their own initiative, called up the website and "clicked through" via several links to the match suspensions. The fact that the entry about the plaintiff also appears when his name is entered in an Internet search engine does not make publication on the website unlawful. In addition, it was in principle just as permissible to obtain information about a third party as to provide information about a third party. The fact that search engines facilitate the procurement of such information does not change this. The possibility of such a search is not associated with any public stigmatization or pillorying effect.
As this is a preliminary injunction procedure, an appeal on points of law is not permissible.
Judgment of the Higher Regional Court of Karlsruhe of January 30, 2009 – 14 U 131/08 –
Source: Press release of the OLG Karlsruhe of Jan 30, 2009
Goldberg Rechtsanwälte
Attorney-at-law Michael Ullrich, LL.M. (Information Law)
Specialist Lawyer for Information Technology Law (IT Law)
E-mail: m.ullrich@goldberg.de
