In this Court's view, the question of liability of the owner of a Facebook accounts at its infringing use assessed by a third party according to the principles, which the Supreme Court called in. “Halzband”-Decision for the liability of the private owner of an eBay account has established by a third party in its abuse.
Thereafter, the private owner has a member account on eBay, who has his access secured inadequately protected from unauthorized access, be treated as, as he himself had acted, if a third party has come to the entrance of this member's account and used it to protect rights violations and breaches of competition, without the account holder has caused or condoned this. A far given in safekeeping the credentials for the user account is a separate breach of duty, to the principles of nuisance liability self-attribution basis constitutes [vgl. Urt. in. 11.3.2009 - I ZR 114/06 - Rn. 16].
of that as the reason for the liability, who has not kept his contact under wraps, saw the BGH which he created danger, that may arise in relation to traffic confusion, which person acted pursuant to the Member Account on eBay, whereby the possibilities, to identify and possibly the agent. – a legal transaction or tort – to claim something, be serious. Of importance is the extent, that the control data and the password of an account on eBay as a special identification means allow an action under a specific name to the outside. In this respect, there is according to the BGH a general responsibility and obligation of the owner of an account on eBay, for keeping his contact so under wraps, that they gained no knowledge
OLG Frankfurt judgment 21.07.2016 The zu 16 You 233/15 – Liability for Facebook account abuse
LG Wiesbaden – 14.10.2015 – THE: 5 The 73/14
On appeal by the applicant, the judgment of the Landgericht Wiesbaden is from 14.10.2015 – The. 5 The 73/14 – partially modified.
The defendant is ordered, to the applicant € 3,000– plus interest in the amount of 5 Percentage points above the base rate since 20.6.2014 to pay.
The defendant is ordered, to the plaintiff € 382,70 not compensable extrajudicial legal fees plus interest in the amount of 5 Percentage points above the base rate since 20.6.2014 to reimburse.
Nor should the application be dismissed and rejected the further appeal.
Of the costs of the proceedings have the applicant 15 % and the defendant 85 % to wear.
Das Urteil ist vorläufig vollstreckbar.
Both parties may enforcement by providing security in the amount of 120 % of each turn to be enforced amount, if fails to make the other party before the enforcement security of the same amount.
The revision is approved.
The parties disagree about postings, under the Facebook account of the defendant on the furnished by the applicant Public Comment on Facebook to advertise the event organized by him for commercial “…” published. After the parties with regard to the criminal penalties discontinuance at the hearing given by the defendant before the Landgericht- and commitment (vgl. GA 71/72) the application for an injunction to point. 1.a) have declared unanimously to judgment, , the applicant nor monetary compensation and extrajudicial legal fees asserted.
Because of the facts and the applications at first instance provided is in accordance with § 540 Abs. 1 Referring ZPO on the factual findings of the Landgericht's judgment.
The court dismissed the action by the contested judgment and the costs – unless the parties have declared this according to judgment – imposed on the defendant. The law have stated essentially, It can remain undecided, whether the defendant had the disputed statements set personally or this was done by one of his friends using the Facebook accounts of the defendant. Because there was no case serious violation of the privacy of the applicant, the monetary compensation is justified. Lack of a claim in the main stand to the applicant no claim against the defendant for compensation for his extrajudicial legal fees to.
Against this, the applicant has filed an appeal. He alleges unlawful acts by the District Court, which have completely surprising denies the gravity of the violation of his personal rights for him.
(From the presentation of the following passages is apart, die Red.)
The applicant claims,
the judgment of the Landgericht Wiesbaden by 14.10.2015 – 5 The 73/14 – aside and
order the defendant, to the plaintiff adequate damages, which is provided to the amount in the discretion of the court, a minimum of € 3.000,– plus interest in the amount of 5 Percentage points above the base rate from pendens (20.6.2014) to pay;
order the defendant, the applicant € 414,50 not compensable extrajudicial legal fees plus interest in the amount of 5 refund percentage points above the base rate from pendens.
sought by the defendant,
dismiss the appeal.
(From the presentation of the following passages is apart, die Red.)
The appeal by the applicant is admissible, in particular it is time- been and form filed. On the merits, it is based for the most part.
The applicant may require the defendant to monetary compensation in the amount of € 3.000,– desire.
Wrongly, the district court a claim of the plaintiff pursuant to payment of monetary compensation §§ 823 Abs. 1 and 2, 1004 Abs. 1 BGB analog i.V.m. Art. 1 Abs. 1 and Art. 2 Abs. 1 GG; § 185 denies Criminal Code.
1. Rightly criticizes the appeal, has seen in the disputed statements not serious interference with the personal rights of the applicant, the district court.
a. The district court has initially established by the Federal principles of assessment, whether a serious violation of personal rights exists, requiring the payment of a cash compensation, presented accurately. Then the Senate takes to avoid repetition reference. Not acceptable but is the distinction made by the district court review of individual utterances.
Successfully challenging the appeal, that the district court has the individual expressions isolated and assessed for pure text. In that regard, the appeal is to admit, that when assessing the understanding of the remarks in question primarily on the transmitter- and receiver horizon remedy is taking into account the views and values of the Persian cultural area of the participants.
aa. Here, especially the fact is of particular importance, that homosexuality in Iran socially taboo and homosexual acts are punishable. In such but plays on the first utterance (…), which therefore inherent in a clearly derogatory content. The missing of the Landgericht persons related to the applicant, which is, moreover, only of relevance, as far as the insult of the applicant to third parties, follows easily from, that immediately following this statement, only separated by a comma, full name is called the claimant and he in subsequent sentence again directly as “…” is addressed.
Furthermore, it can be seen, that the mother is known to a prominent status is given to the Persian-Islamic culture. Accordingly, the performance of a sexual act on the mother as well as the designation of a primary sex organ of the mother (“…”) a serious insult to the person addressed is.
The raised by the Landgericht concerns, that as the Titulierung “…” or. “…” expressed reduction could be associated with the plaintiff, can not follow the Senate. As is contained both in the name of the immediately preceding and in the following sentence, the full name of the applicant, is undoubtedly recognizable for the reader, that the applicant hereby is meant. In addition, results for the visitors of your whiteboard presentation the knowledge of the fact, that it is for the applicant to the organizer, also from, that he just for the purpose of information on organized this of the applicant and there advertised …event has visited.
The comment … ” also the district court as “not favorably” classified against the applicant. It can remain undecided, whether they considered alone constitutes a serious infringement of personal rights of the plaintiff.
bb. Although certain passages of the postings may contain a less weighty insult the applicant's conceptual content, provides the posting at least in its overall effect a serious breach of his personal rights are, especially since a large part of the impugned statements clearly a derogatory sexual terms belongs (“…”, “…” or. “…”). In this context is also seen, that all utterances are characterized by disrespect and devaluation of the applicant, whereby the offensive action is reinforced against him.
cc. Der Umstand, that in the provided order sought to point. 1.a) held in the Persian language text are not translated literally as in the first instance (and also on appeal) translation submitted, but the meaning of the statement content contained in German reproduces, is for the appeal even further pursued request for payment of monetary compensation without legal relevance. To assess the extent relevant question, whether they constitute a serious interference with the personal rights of the plaintiff, it does not depend on the exact wording of the impugned statements. A crucial factor is the semantic meaning of the decisions in the Persian language text parts, which bring the Unwertgehalt against the applicant expressed.
b. Furthermore, it plays a role of importance and implications of the intervention, that the statements were publicly distributed via Facebook in Internet. In that regard, is mainly the fact particular importance to, that the applicant must assume, that the content of the post just members of the Persian community in … is brought to the attention. Because the undisputed submissions of the applicant, according to part of the group of persons, to which it is directing its events and typically for the …interesting events of his Pinnboard presentation, on which the him hurtful remarks were posted, also on the Persian culture and both languages – German and Farsi – powerful.
c. That on the basis of the at the hearing before the District Court 10.9.2014 the declaration of the defendant a binding him negative pledge contract is come with contractual penalties materialize, which content fully with the order sought by point. I. a) corresponds pursued injunctive relief by the applicant, able to justify not otherwise satisfactory compensation for the defamation of the plaintiff. For thus was no redress of the personal rights of the plaintiff hurtful remarks to the public, so that the payment of a cash compensation is imperative, to cause a satisfaction of the applicant.
d. As for the height, The Senate holds in view, that there are multiple expressions, an amount of € 3.000,– appropriate but also sufficient.
2. The central problem of the dispute, not allowed to leave undecided the Landgericht, is the question, whether the defendant is liable as a perpetrator of the infringement in question personality.
a. In this Court's view, the question of liability of the owner of a Facebook accounts at its infringing use assessed by a third party according to the principles, which the Supreme Court called in. “Halzband”-Decision for the liability of the private owner of an eBay account has established by a third party in its abuse.
aa. Thereafter, the private owner has a member account on eBay, who has his access secured inadequately protected from unauthorized access, be treated as, as he himself had acted, if a third party has come to the entrance of this member's account and used it to protect rights violations and breaches of competition, without the account holder has caused or condoned this. A far given in safekeeping the credentials for the user account is a separate breach of duty, to the principles of nuisance liability self-attribution basis constitutes [vgl. Urt. in. 11.3.2009 - I ZR 114/06 - Rn. 16].
bb. of that as the reason for the liability, who has not kept his contact under wraps, saw the BGH which he created danger, that may arise in relation to traffic confusion, which person acted pursuant to the Member Account on eBay, whereby the possibilities, to identify and possibly the agent. – a legal transaction or tort – to claim something, be serious. Of importance is the extent, that the control data and the password of an account on eBay as a special identification means allow an action under a specific name to the outside. In this respect, there is according to the BGH a general responsibility and obligation of the owner of an account on eBay, for keeping his contact so under wraps, that they gained no knowledge [Rn. 18].
Contrary to what the defendant is on eBay, no further control over the person of the applicant via its bank. For as the Senate is known from his own experience, is no obligation, debited from eBay that have been made legal transactions on the account of the concerned account holder.
bb. By equating the careless storage of account information for an eBay account with those of a Facebook account whose owner is also not burdened with unreasonable liability risks. In that regard, the same considerations apply, the Federal Court of Justice has hired at an eBay account [vgl. BGH supra. - Rn. 23].
c. Then there is neither important, whether the defendant has set the postings themselves on Facebook or leaving adjust, even if he has to use the access caused or tolerated his Member Facebook account by third parties.
aa. Authoritative circumstance alone, that the defendant had not sufficiently supported by his own lecture ensure, that third parties, especially his friends gained no access to the login and password of their membership account. For as the defendant itself admitted, he wants to have logged at that time in his Facebook account also via the computer of friends or acquaintances, with its periphery with their own access “quite careless” was made, by have neither paid attention, always log out carefully to such use when Facebook, even if possibly. at the foreign computer automatic watch function was activated, which allowed the next login without entering a password (vgl. GA 76).
bb. Accordingly, the defendant has his duty, to keep the access data as secret, that third parties could gain no knowledge, injured in a way, the reasons for its liability for the possibly committed by a third party using this data defamation of the plaintiff.
The coming into consideration here attribution reason engages not only a, if the defendant as the account holder can continue the inadequate security of its contact details, after he became aware of it, that a third party had used unauthorized. He is rather already the first based on the inadequate security of Contact infringement of third party offenders nomic as own actions attributed [vgl. BGH supra. - Rn. 20].
d. Not penetrate can the defendant with his argument, at a private Facebook account whose owner do not come in a legal transaction on, while arriving at an eBay account just to the person of a legal transaction doer. It is more important, that is in both cases, the risk of misuse by unauthorized third parties, the commit on the Account rights violations, and will address the matters set out above, care requirements in terms of dealing with the personal login. Typical risk is on Facebook as a communication platform, the progressively increasing violation of personal rights by insulting remarks, as the Senate can judge from corresponding litigation itself.
Contrary to what the defendant has the Supreme Court in the “Halzband”-created decision no special form of liability for copyright -and / or trademark infringement and antitrust violations. That pulled the BGH a liability of the local defendants as perpetrators just such acts of infringement into account, was alone the fact owed, that they typically can be done via a there Amused Member account on a trading platform like eBay. A limitation of the liability established by the BGH principles to the area of intellectual property rights and copyright can be the decision, however, does not refer to. Incidentally commercial purposes can also be followed via a Facebook account, as already the special provisions for advertisers (Ziff. 10. of Terms) show. Accordingly also the applicant had made the …event promoted actively on Facebook.
3. Incidentally, it should be noted, that in any case in line with the case law of the BGH on liability of the access line is for an offense committed through its Internet rights violation to take an actual presumption of guilt of the defendant as the owner of the Facebook accounts, if this – which can be assumed here – at the time of the subject infringement could not use other people.
In that regard, the applicant has to admit, that such evidence against the owner of an Internet connection, the grds. is entitled, to permit any third party to its Internet about in his household access, must apply a fortiori to the proprietor of a Facebook accounts, which is assigned to a specific person for private use and their available power and control subject.
a. Under the transfer drawn up by the BGH principles such an assumption is not justified, when the Facebook account was not sufficiently secured at the time of the violation or deliberately (also) other persons was allowed to have access to this. In these cases, however, the defendant meets the holder of the Facebook account a secondary burden of proof [vgl. BGH Urt. 12.5.2010 - I ZR 1212/08 - Summer of our lives - Rn. 12; Urt. in. 8.1.12014 - I ZR 169/12 - BearShare - Rn. 16; Urt. in. 11.6.2015 - I ZR 75/14 - Exchange III - Rn. 37], which is characterized been satisfied by the BGH in the owner of an Internet connection, he recites, whether injury time another person and if necessary. who else had independent access to his Internet connection or as a perpetrator of the infringement in question. To this extent, the Supreme Court considers the access owner obliged within reason also to investigate and to indicate, what knowledge he has gained here about the circumstances of a possible infringement action [BGH BearShare ibid. - Rn. 18; Exchange III ibid. - Rn. 37 and 42].
b. How does the appeal correctly submitted, the defendant has not put forward its secondary onus accordingly, so that it remains with the actual presumption, that the defendant is responsible as the perpetrator of the infringement of personal rights of the plaintiff. For thus lacks a factual basis for the adoption, Mom could the act of infringement with – sole – have committed over the infringement [vgl. BGH Exchange III - Rn. 48].
aa. While it is not to require the defendant, that he would have to explain in detail, exactly who undertook the concrete engagement and the postings ceased on his Facebook account, because it can not describe its own perception, the exact processes. In that regard, it must be admitted, that the secondary burden of proof can only be based on his knowledge of possibilities. Not sufficient but it is also in such a case, only establish presumptions or sweeping claims, how could it have come to the setting of the contested postings on his Facebook account. But Then boils the defendant's argument, when it relies on the existing theoretical possibility of access to his Facebook account in this regard,, that he regularly attended by – not notified otherwise – People have opened from his friend and acquaintances his Facebook account, to share mutually with them.
bb. Therefore, the statement by the defendant continues to prove as inadequate, because he did not comment specifically to, whether at the time, performed as the postings (….2012), at all other people had the opportunity, access his Facebook account and thus can be used as perpetrators into consideration, perhaps because he was on that day or shortly before an alien laptop or iPad (whose?) had logged into his Facebook account and to use refrain, again explicitly logout or one of those present (who) it could have been observed in entering his password. This reconstruct promptly, the defendant also had occasion, because he wants to have his own arguments According learn on the same day of his father by the postings, who had called him and confronted, that were made on the Facebook account of the defendant's negative remarks about the applicant.
The Senate is not unaware, that this (alleged) did not have to necessarily go hand in hand in time with the setting of the impugned statements of spying Facebook accounts of the defendant. This does not relieve the defendant of course not, ever to provide information as part of its secondary onus, where it would have been a matter for the Senate, to assess their validity.
4. The requisite for monetary compensation claim fault of the defendant is in the affirmative. For he had at least expected, that due to his careless handling of his password to unauthorized third parties, especially his friends could use his Facebook account to rechtverletzendem action. Not to convince capable of defense of the defendant, owning a Facebook accounts not a typical risk it should be apparent, he had to fend off against third parties. As he recites, the Internet is full of simple instructions and utilities, to hack a Facebook account. That hereby may involve abuse by unauthorized third parties as for the commission of violations, which the defendant beneficiary alone by the careless use of his access, not appear entirely improbable. So in any case it applies the charge of simple negligence.
5. Finally, it is legally irrelevant, that the applicant had vorprozessual only requires reimbursement of legal fees for the lawsuit and now suit, a monetary compensation asserts. The legal system can be inconsistent behavior to basically. A party may change its view of the law. Abusive behavior is contradictory only, if this builds trust causative relation to the other part or blank if other special circumstances appear the exercise of rights as a bad faith. Of this is not be considered that,. As from the applicant's letter of 2.9.2013 shows, were the from in his letter 23.8.2013 demands set explicitly only in the event of an out of court settlement. But that just do not trust rule was introduced against the defendant, that the applicant will do in the event of legal action any further claims asserted against him.
With success, the appeal turns further against the denial of the claim made for reimbursement of pre-trial legal costs by the District Court.
The applicant is to §§ 683 S. 1, 670 BGB a claim for reimbursement of Abmahnkosten as legal costs of € 382,70 to, because the expressions – as shown – were illegal and the warning of the defendant with a lawyer letter dated 23.8.2013 (GA 25/26) was therefore entitled.
1. Even if the defendant was initially approached by itself to the plaintiff in the aftermath of the investigative measures the prosecution, the subsequent letter from the applicant's counsel from 23.8.2013 To qualify as a warning letter. Because this contained the invitation to the defendant, issue a penalty clause explanation within a reasonable time, so that a process is avoided. From the contents of the required declaration of submission of the defendant could also refer, which concrete behavior has been criticized by the plaintiff. Furthermore, the applicant had by writing directly following the 6.9.2013 made absolutely clear to recognize, that he would take legal action against the defendant, if he do not return the required declaration of submission within the prescribed period.
b. As far as the defendant has pointed out, the applicant had already instructed its counsel at the time of the warning with the filing of the action, the Senate is not traceable, any reason thereof is to follow a different assessment of the eligibility of costs incurred vorprozessual. From the applicant's letter of attorney 2.9.2013 (GA 90) it is clear, that courses provided by the applicant brought an action order does not necessarily, but was granted conditionally precedent for the case, that it is not an agreement of the parties on the basis of the proposal in its warning letter from 23.8.2013 within the prescribed period to 6.9.2013 would come.
Nor precludes the reimbursement, that the applicant 's lawyer had first taken over the representation of freedoms. uncontradicted presentation of According to the applicant, he had given his counsel against the contract to extrajudicial persecution of claims from those at issue infringement, wherein during the pre-litigation processing first verification to establish the identity of the defendant.
c. However, the plaintiff may only Abmahnkosten of € 382,70 demand payment.
aa. In that regard, just a dispute of € 10,000– be based for the persecuted injunctive, since vorprozessual was still no payment of monetary compensation by the plaintiff. As the defendant has argued unchallenged, that covered by the evidence required by the applicant payment of € 1.500,– to offset the cost of his legal representation in the criminal complaint against the defendant.
bb. be based on a 1,3 Annual fee, the – made as well as the applicant claims – by Preface 3 Abs. 4 S. 1 VV RVG half on the after part 3 VV RVG resulting procedure fee of the judicial process will be credited.
The alleged 1,5 Annual fee for number. 2300 VV RVG can not claim the applicant. Although is the attorney under § 14 Abs. 1 RVG at scale fees as the business fee to No.. 2300 VV-RVG a discretion to, so that, as long as certain by the lawyer in individual cases fee within a tolerance limit of 20 % emotional, the fee is not unreasonable within the meaning of § 14 Abs. 1 Set 4 RVG and therefore to accept from a third party liable is. Increasing the threshold fee of 1,3, illustrating the rule charge for average cases, on a 1.5-fold fee but is not of judicial review as regards the existence of factual requirements for exceeding the standard fee 1,3 withdrawn. Otherwise, the lawyer could for average stuff, the only rule of fee 1,3 justify, require readily a 1.5-fold fee. This would be contrary to the wording and also against the spirit and purpose of the legal fees facts in No.. 2300 VV-RVG, does not provide an increase in the fiscal charge on the rule fee addition to the discretion of the Attorney, but determined, that a charge of more than 1,3 can only be called, if his extrajudicial activities was extensive or difficult and therefore above average [vgl. BGH 11.07.2012 - VIII ZR 323/11- Rn. 11; BGH 05.02.2013 - VI ZR 195/12- Rn. 8].
A special scope or a particular difficulty, the applicant does not set out; Such is also not visible. An above average scope of which results in particular from the fact, that the applicant 's lawyer initially strained an investigation, determine the identity of the defendant, and several telephone discussions with both this themselves as well as with the lawyer led.
The interest claim follows from §§ 291, 288 Abs. 1 Set 2 BGB.
The procedural side decisions are based on §§ 92 Abs. 1, 91 a; 708 Ziff. 10, 711 Code of Civil Procedure. In terms of (partially successful) immediate appeal of the defendant against that contained in the judgment under appeal decision on costs in accordance with § 91 ZPO an amendment to the Decision by the Senate was in terms of the completed part of the action extent also caused. Reference is made to the statements in the resolution of today, respect.
The revision was under § 543 Abs. 2 S. 1 ZPO zuzulassen, as the case is of fundamental importance and the development of the law or the assurance of a uniform law requires a decision of the Court of Appeals.