The plaintiff claims against the defendant sports association for the omission of the publication of an entry on its homepage.
The plaintiff is a member of a sports club based in South Baden and a coach of its 2nd Bundesliga team. During a match of one of the club's teams in the youth league, in which a club player had been injured, a verbal altercation occurred between the plaintiff, who wanted to take care of him, and the coach of the opposing team, in the course of which the plaintiff slapped the coach in the face. The disciplinary committee of the competent sports association then imposed a fine of € 100.00 on the plaintiff for the assault and banned him from performing any official activity, inter alia within Baden-Württemberg, until 30 April 2009.
On the homepage of the association, in which a list of the match suspensions imposed is also published, the entry was included with mention of the plaintiff by name:
"14.04.2008 ..... Youth League Assault on coach of visiting team Suspension until 30.04.2009 (for performing official duties) + 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 these are interim injunction proceedings, an appeal is not admissible.
Judgment of the Karlsruhe Higher Regional Court of 30.01.2009 - 14 U 131/08 -
Source: Press release of the OLG Karlsruhe of 30.01.09
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. ( Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: m.ullrich@goldberg.de
