Public announcement in book form the specific behaviors exhibited by a person identified by a child injured his general right

a) The public announcement of the specific behaviors and skills shown by a person identified by a child in elementary school be-impaired its general right of personality in its manifestation as right to undisturbed child contemporary development.
b) The do not belong to the disclosure in the public life of property, plant-behaving caused infringement of personal rights by not deleted, that the injured party or his legal guardian expresses after injury also to the disclosed circumstances.
c) To reach the scope of the freedom of art (Art. 5 Abs. 3 GG).

BGH JUDGMENT VI ZR 175/14 from 15. September 2015

GG Art. 1 Abs. 1, 2 Abs. 1, 5 Abs. 1, 3; BGB § 823 Abs. 1 Ah, § 1004 Abs. 1 Set 2.

..

The VI. Civil Division of the Federal Court from the hearing 15. September 2015 by the presiding judge Galke, the judge Wellner, Judge von Pentz, the judge and the judge Dr Offenloch. Roloff
hereby:
I. On appeal by the applicant, the judgment is the 15. Civil Division of the Oberlandesgericht Köln by 11. March 2014 the cost point and be released immediately, as the judgment of the Cologne Regional Court of 18. September 2013 were dismissed on appeal by the defendant abgeän-changed and the action and the appeal by the applicant against the rejection of their court against both defendants-ended requests for injunctive its name as a subsidiary of A. X. and / or child of A. X. in the book “H. ” has been rejected.
On appeal by the applicant, the judgment of the Landgericht Köln is from 18. September 2013 partially modified and clear position restated as follows:
1. Defendant 1 is sentenced, to refrain from, the first edition of the print product “H. ” (ISBN ) to place on the market and disseminate public-lich, if the applicant in the said work with full name or as U. X. , as a subsidiary of A. X. and / or as a child of A. X. is named, if this happens, as in the system as K 1 submitted Buchaus Print.
- 3 -
2. Defendant 1 is sentenced, to refrain from, all wide-ren editions of the print product and the ebook “H. – ” (ISBN ) to place on the market and to disseminate public, if the applicant in the ge-called business as a subsidiary of A. X. and / or as a child of A. X. is named, if this happens, as in the system as K 1 Paper submitted printout.
3. The Defendants 1 is for each case of infringement ge-gen the injunctions under paragraph 1 and 2 an order-money of up to 250.000 And for the case €, that it can not be driven at-, Imprisonment up to six months, in case of recurrence up to two years, – the administrative detention to fully draw on their respective managers – threatened.
4. Defendant 2 is sentenced, to refrain from, the applicant in the first edition of the print product “H. ” (ISBN ) with full behalf, as U. X. , as a subsidiary of A. X. and / or as a child of A. X. designate, if this happens, as in the system as K 1 Paper submitted printout.
5. Defendant 2 is sentenced, to refrain from, the applicant in all subsequent editions of the printed product or ebook “H. ” (ISBN ) as a subsidiary of A. X. and / or as a child of A. X. designate, if this happens, as in the system as K 1 pre-designed book expression.
- 4 -
6. The Defendants 2 is for each case of infringement ge-gen the injunctions under paragraph 4 and 5 an order-money of up to 250.000 And for the case €, that it can not be driven at-, Imprisonment up to six months, in case of recurrence up to two years, threatened.
7. The defendants are sentenced as joint debtors, to the applicant 1.196,43 € plus interest in the amount of 5 Percentage points above the base rate from 1.157 € since 16. November 2012 and from 39,43 € since 4. More 2013 (Defendant 1) or. since 5. More 2013 (Defendant 2) to pay.
8. Moreover, the application is dismissed.
II. The further appeal may be dismissed.
III. Of the costs of the proceedings, the applicant bear 1/3 and the defendants ever 1/3.
As of right
- 5 -
Facts:
The underage applicant seeks an injunction and payment of a monetary compensation for the identifying mention of their person in egg nem by the defendant to 1 laid and by the defendant 2 authored book.
Defendant 2 was a primary school teacher and is the wife of a former senator of B. The applicant was after moving in winter 2007 logged at the primary school, where the defendant 2 taught. The applicant took part in the trial teaching third grade, To tes th, whether it is suitable, Skip to second grade. Defendant 2, which was the homeroom teacher of third grade, spoke out against an over-jump. In March 2008 put the mother of the applicant for the handling of Defendant 2 with her daughter a complaint with the Senate Department for Education, a. In November 2008 turned the mother at the B. Newspaper, describing the process, stating their own name and the name of the defendant to 2. In the subsequently on 5. November 2008 Erschie-nenen article it was said with full attribution and Others. as follows:
“Y (Note the Senate: Defendant 2) deemed to be experienced and rigorous primary school teacher. Her husband, …senator Z (…), is also interested in the situation of schools in B. and manifests itself every now and again in interviews since-to. Recently he has written in a letter to the teachers of a city ... “Traditional performance remote Culture” accused. Now Y has even anger. Against the teacher is already since April a complaint with the Senatsbildungsverwal-tung ago. Under number VII A 4.4 accused her, to have violated schulrechtli-che Staff Rules. It's about her own authority Ver-hold over a student. … “I have the impression, that the Bil-
1
2
3
- 6 -
Manure management has so far not dealt with the complaint”, says Ms B., who lodged the complaint. The reason for this entranc-be was the handling of the elementary school teacher Y with a girl, the egg of ner other school coming third in the class of primary school in B. Wes-th had been taken. There was Y homeroom. After describing the Mother A ... X. there were immediate problems between Y and its classified hochbe-gabT child. At the beginning of the Christmas holidays 2007 the teacher should have suddenly taken the satchel of the child and have reingesteckt textbooks and teaching materials of the second class. Upon request of the parent Y to have said, that the child would now attend the second class. Though: A necessary for such a measure resolution of the Class Council there was not at this time. Later, the basic-school teacher should have even said, that the girl would not even go to school. The mother reported, her daughter had suffered. In order to avoid further strains, have your child finally actually given in the lower class. The girl's mother turned finally after consultation with the Acting Headmistress, which also disapproved of the behavior of the teacher Y, the competent council ..., H., on. This, seit 17 Years in office, tried to clear the air between Y and the child's mother. And doch, as Ms B., have proposed appointments canceled at short notice – also without giving reasons. Last mid-March 2008. In response, the specialized school attorney on behalf of Courage ter a complaint against Y. Also the valiant council drew consequences. He ordered the teacher Y “a pedagogical new beginning” at a ande-ren School – they should be added. But that did not happen. Y wrote on 3. July 2008 a letter to Education Senator J. (…). In it she took a formally correct Eilbeschwerde against their impending dislocation. In the letter she spoke of a “personal vendetta” against him. At the beginning of the
- 7 -
Summer vacation is the resolute school board H. by the responsible head of department of educational administration, L., communicated in a personal interview, that he for 15. August is set and future as school board in NK. working. It is a “Voltage conversion. …”
In the aftermath of the operation has been taken up in several Presseveröffentlichun gene. The defendants were to 2 and the plaintiff's mother mentioned by name as well as the primary school attended by the applicant. The name of the applicant was not notified.
After her retirement from the teaching profession in 2011 wrote to the defendant 2 the book “H. “. The book was to by the defendant 1 relocated and released in autumn 2012. Those Complaint to-zu 2 portrays in the events surrounding the trial displacement of the applicant in a higher class. She performs with full attribution u.a. out:
“Am 12. November 2007 came Mrs. W., then Acting Konrek-Torin, in the school hallway to me. In the background I saw a mother with her little daughter. This mother was A ... X. (Note the Senate: Mother of the applicant). I looked more closely at the child. It was an open-minded Mäd-chen, but it turned out, that it was still too immature for a third school year. The other girls were socially superior to him, what they themselves acknowledged with Maulereien and offended. She wrote very slowly and un-articulated. When reading they had trouble, to grasp the meaning, cried quickly, if something did not succeed equally, how to fold a cube and glue. In computing also great difficulties were me by the subject teacher ge-called, as there was in English for problems ... (S. 141 ff.).
4
5
6
- 8 -
…Am 5. November 2008 appeared in the B. Newspaper an article entitled “The wife of Senators ensures dispute”. It was about the already-negotiated BE “Wannabe About Springerin”, Daughter of Mrs. X .... (S. 163).
... I was at a loss. Should it be so, that my colleagues the lurid press articles gave faith? … In order to produce at least at my service center information Balance now, I asked for my colleagues in a few words together, what it was actually gone .... Here the ori-ginal text:
Basic information on the case of U .... X. (Note the Senate: Plaintiff) B., the 9.11.2008
In .... X. came in November 2007 illegally at the request of the mother, and by causing the provisional Rector Woman W. to sample in my class .... Therefore, I have defended myself against it. That did not like the school council and my headmistress, because they probably like their mistake, the child at all the 3. Having given school year, wanted to cover up. Opposite the mother presented it is so, as if I had only ensured, that the child U. X. back to 2. Go school year had to ...” (S. 166 f.).
The applicant submits, identifying the representation of their person as immature “Pseudo-gifted”, the lacked the necessary intelligence and social skills, infringes them in their intimacy. According to the Be-lamented lack of an infringement of the applicant, because of the book Darge-presented facts have already been the subject of comprehensive press releases.
The defendants have committed a criminal act Unterlassungserklä-tion to, the full or abbreviated name of the applicant
7
8
9
10
11
12
- 9 -
not to use in the eBook and from the second edition of the print product.
The district court, the defendant to 1 sentenced, to refrain from, to bring the first edition of the book on the market and publicly Spread th, when the applicant therein, as happened in the book expression, annexed, is called full name or abbreviated name and full surname. The district court, the defendant to 2 creatures-Teil, to refrain from, to appoint the applicant in her book full name or abbreviated name and full surname, if this happens, as shown in the book expression, annexed. The district court has the defendant in addition to pay-righthand legal fees in the amount of 1.196,43 € condemned the action and, moreover abge Meadows. On appeal by the defendant, the Court of Appeal dismissed the action in total. The appeal of the applicant was rejected it. With the approved by the Senate audit the applicant pursued its action requests further.
Reasons for the Decision:
A.
After the Appellate Court, the applicant has no claim for an injunction of the identifying designation in the stands to by the defendant against the defendant 2 authored book. Although the applicant was affected by the impugned publication in their general personality rights. Affected is their right to respect for privacy, the embrace also be empowered, to stay in self-imposed anonymity. Es come
13
14
- 10 -
not important, whether the identification of the applicant on the other by naming their full or abbreviated name or message, their identifica-tion enabling data Achievements. Because it makes no difference, whether the person concerned would be made clear to the reader by the explicit mention of his name or in any other way. But the engagement is not unlawful, since the protective interests of the applicant would withdraw behind the law of Be-accused to freedom of reporting. Although the Pri-vacy the applicant is vulnerable to a greater extent, because the applicant is underage. This principle extensive protection is restricted regarding the dispute, because the fact, that the applicant as a result of giftedness the second class had to skip and the defendant 2 her this did not allow, was well known due to an act of the mother of the applicant. To be in the published at the request of the mother of the applicant newspaper article ago- and surname of the applicant, the name of their lawyer, giftedness, mentioned the dispute over the Ver-lasting of the applicant in the third grade and the location of the school. The other Einzelhei th named in the following press reports were included in the self-opening. Because the plaintiff's mother had to assume, that due to the known name of Defendant 2 would further press organs take up the issue and put to-own research; the name of the primary school was easy to research turned-sen. The applicant can not have a higher degree of anonymity DEMANDS-chen, as if she had occupied as a result of the self-opening of her mother and through this Veran-led reports to the public so far. The Berichterstat-tung from the year 2008 is irrelevant and not due to timing. Because she was still available on the Internet and will in further reports from the year 2011 picked up and linked. Although the full name of the applicants-rin was not mentioned in the cited articles; However, it was from the
- 11 -
been easy to identify other data referred. It therefore already belong to the embossed in the public image of the applicant, that it will be-tween her mother and the defendant 2 due to a result-battered Images failed attempt by the applicant, a class to skip because of giftedness, gave a prolonged confrontation. Launched by the defendant 2 authored book make the applicant merely continue in the same way identifiable. That the applicant by the defendant 2 will displayed content unlike the prompted by her mother Press report, lies in the nature of things. Had the applicant been judged equal by her mother and her teacher, so it would not come to the debate-ge.
In contrast, the defendants could invoke the right of freedom of expression-. Going away from there, that the defendant 2 a debate book on the state of today's school and in particular the school administration in B. I want to write, it also felt by her as bullying incidents in recent years their school service have worked up wol-len, and taking into account the fact, that the non-promotion of the applicant in the press already have found previously much attention, there was a public interest in information even where the applicant and her mother Involving process. The intention of the defendant was directed, to criticize an excessive interference by the parents in the school system and a lack of acceptance of the teacher as an educational authority, where-for the episode with the mother of the applicant may serve as an example. The decisive factor for the balance in favor of defendants, that the identification enabling personal data of the applicant had been available at the time of being handles-nen publication on the Internet. The view of the OEF lic on the applicant was already given and influenced by the already vorhande-nen information.
15
- 12 -
B.
These considerations hold the revision legal review does not in any way stand. Contrary to the opinion of the court the plaintiff against the defendants are injunctive relief from § 823 Abs. 1, § 1004 Abs. 1 Set 2 BGB analog i.V.m. Art. 2 Abs. 1, Art. 1 Abs. 1 GG where designated in Tenor detail screen. The publication and distribution of the book “H. “, where the battered Images failed-attempt the applicant, to skip a class, described in identify-the way and this closer under document describing facts as immature and their classmates socially inferior “Wannabe Skipping-rin” is shown, violate the applicant in its general-Personal keitsrecht. The applicant can also demand compensation for the necessary righthand-legal fees. The revision, however, is unfounded, so far as it the application is pursued, Defendant 2 pleadings, it unterlas-sen, to designate the applicant in the public and / or in relation to the book in identi-way-qualifying. Without success, the revision also applies to the dismissal of the request for payment of a cash compensation.
I. The applicant may require the defendant in accordance with § 823 Abs. 1, § 1004 Abs. 1 Set 2 BGB analog i.V.m. Art. 2 Abs. 1, Art. 1 Abs. 1 Require designated closer GG omission as in the tenor.
1. Das Berufungsgericht hat im Ergebnis zu Recht angenommen, that the applicant identifies representation of events associated with its failed attempt, Skip to second grade, where to by the defendant 2 engages authored book in the scope of the general per-sönlichkeitsrechts the applicant. Affected is the one the right to informational self-determination, which gives individuals the power, reason-
16
17
18
- 13 -
addition to decide for themselves, whether, when and within what Gren zen regarding their lives are revealed (vgl. Senate judgments 29. April 2014 – VI ZR 137/13, AfP 2014, 325 Rn. 9; from 30. September 2014 – VI ZR 490/12, AfP 2014, 534, 536; from 13. January 2015 – VI ZR 386/13, VersR 2015, 336 Rn. 9, each with further references). Concerns also have the right of underage applicant to unhindered development of their personality and undisturbed child contemporary development (vgl. Senate judgments 5. November 2013 – VI ZR 304/12, BGHZ 198, 346 Rn. 17 mwN; BVerfGK 8, 173, 175; Constitutional Court, NJW 2000, 2191, 2192; AfP 2003, 537). Children require a special-their protection, because You have to be self-responsible people escape-velop. Your Personal development can thus, that personal matters are made the subject of public discussion, are much more sensitive than that of adults disturbed (vgl. Senate judgments 5. November 2013 – VI ZR 304/12, BGHZ 198, 346, Rn. 17; from 29. April 2014 – VI ZR 137/13, AfP 2014, 325 Rn. 9; BVerfGE 101, 361, 385; 119, 1, 24; 120, 180, 199). That every child's right to unimpeded development-lung personality – to “Are person” – includes both the Pri-vacy as well as the contemporary child development and deployment in the public-sensitivity (vgl. Constitutional Court, NJW 2000, 2191, 2192). The specific scope of the child on undisturbed childhood development of the right shall be determined by the protective purpose forth taking into account the developmental stages of the child (Constitutional Court, AfP 2003, 537).
2. The intervention in the general right of the applicant was unlawful. The applicant's interest in the protection of her personality over-weighs the result sought by the defendant's interest in information to the public and their right to freedom of expression.
19
- 14 -
a) Because of the nature of the right to privacy as a right frame its reach is not absolutely fixed, but should be determined only by a balancing of conflicting constitutionally protected interests, in the particular circumstances of each case as well as the affected fundamental rights and guarantees of the European Menschenrechtskonven-tion must be considered conductive interpretation. The intervention in the personality-lichkeitsrecht is only unlawful, when the interest of the data subject-nen outweighs the legitimate interests of the other side (vgl. Senatsurtei-le from 17. December 2013 – VI ZR 211/12, BGHZ 199, 237 Rn. 22 = AfP 2014, 135; from 30. September 2014 – VI ZR 490/12, AfP 2014, 534, 536).
b) In case of dispute that is by nature. 2 Abs. 1, Art. 1 Abs. 1 GG, Art. 8 Abs. 1 ECHR guaranteed the applicant's interest in the protection of her personality with the in kind. 5 Abs. 1 GG, Art. 10 Abs. 1 Weigh ECHR right of defendants to freedom of expression (vgl. also from the ECHR 12. March 2015, Almeida Leitão Bento Fernandes gegen Portugal, Appl. no. 25790/11 – http://hudoc.echr.coe.int/eng?i=001-152727#{“itemid”:["001-152727"]}, Retrieved on 10. August 2015). On the in kind. 5 Abs. 3 GG guaranteed Kunstfreilager-ness who complain can not rely on the other hand. The book does not fall within the scope of this fundamental right.
aa) The Art of. 5 Abs. 3 Set 1 GG protected area of ​​life “Art” is by the embossed the nature of art, Only own structure Wish-times to determine their. How far then extends the guarantee of artistic freedom the Constitution and what it means in detail, can not be circumscribed by an equally valid for all forms of expression of artistic activity and for all art genres general concept. The difficulty, To define art, however does not release from the constitutional duty, to decide in the concrete application of the law, whether the Vorausset-
20
21
22
- 15 -
tongues of Art. 5 Abs. 3 Set 1 Present GG, and for this purpose to define the fundamental requirements of artistic activity (vgl. BVerfGE 67, 213, 225; 75, 369, 377). Here the interests of protecting artistic self-determination is to start from a broad concept of art (BVerfGE 67, 213, 225; 119, 1, 23 – Esra; in. Mangoldt/Klein/Starck, GG, Art. 5 Abs. 3 Rn. 298 f., 301; BeckOK / Campaign, GG, Art. 5 Rn. 163 [Stand: 1. June 2015]). A work of art is in any case where, when it comes to a free-cal design schöpferi, in impressions, Experiences and experiences of the artist are brought through the medium of a particular form of language to intuition (vgl. BVerfGE 30, 173, 188 f.; 67, 213, 226; 75, 369, 377; 119, 1, 20 f. – Esra). The author describes a work real events and / or existing persons, Does it matter, if he artistically designed this reality or. creates a new aesthetic reality. The latter is close, if the author mixes real and fictional portrayals and not Faktizitätsanspruch rises. Exhausted the text on the other hand in a reportage account of a real event, and it has no second level behind the realistic level, so he does not fall within the protection conferred by Article-rich. 5 Abs. 3 Set 1 GG (vgl. Senate judgment of 10. June 2008 – VI ZR 252/07, AfP 2008, 385 Rn. 8 – Esra; BVerfGE 119, 1, 20 f., 28 f., 31, 33 – Esra; BVerfG AfP 2008, 155 Rn. 4).
bb) Along these lines, which is by the defendant to 2 authored book not as an art in the sense of Art. 5 Abs. 3 Set 1 To qualify GG. It is a purely factual report, with which the author does not Ge compared to the real reality became independent aesthetic reality Ge create or has sought. The author raises a rather explicitly Faktizitätsanspruch. In her preface, she pointed out, that she wanted to discover primarily grievances in the school system and exclusively Ge-
23
- 16 -
schehnisse have added to their book, which had actually occurred and could prove it.
c) The balance between the interests of the applicant the protection of their personality and in kind. 5 Abs. 1 GG, Art. 10 Abs. 1 ECHR right of defendants to freedom of expression falls in favor of the applicant from. The effected by identifying reporting engaging in their general personality right is considerably. At the time of publication of the book, the applicant was in a particularly privileged stage of their per-sönlichkeitsentwicklung. she was 12 year old, just come in the seventh grade of a secondary school and was nearing or already in puberty. The announcement of concrete, shown in elementary school behav-least have (Maulereien, Beleidigtsein, Crying, if something goes wrong) and the concrete description of the allegedly still insufficient Cards, The-se- and numeracy skills, to the defendant 2 as evidence of the social from her be-hauptete, cites emotional and power Moderate overtaxing the applicant in the third grade, affect as well as the summed-de, derogatory term of the applicant as “Wannabe About Springerin” de-ren right to undisturbed child modern development to a considerable degree. Ent-against the opinion of the court can not be denied on the ground a considerable Beeinträch-ment of personal rights of the applicant by the announcement of concrete school practices and the description of their skills, it was up “in the nature of things”, that the applicant by the defendant 2 will displayed content unlike the prompted by her mother Press report. Because the representation of the applicant is suitable, to hinder their development and for their development as a personality by-sustainably. The applicant had to fear, that finished with concrete details of their representation as socially and emotionally immature person “Wannabe About Springerin” People will be known in their nearby environment and
24
- 17 -
of this is taken as a basis for assessing their person. She had moreover incurring, the target of hostility or teasing – about from classmates – to become. Already satisfy these legitimate fears of the applicant, any breach of their right to affirm on undisturbed child contemporary development. Contrary to the opinion of the appellate court, it does not matter, whether the representation of the applicant has in fact been taken from their environment to the attention. For the determination of specific impairments for the personality development of Minderjähri gene or endanger its well-being is not required for the adoption of an impairment of the right to child contemporary development (vgl. BVerfGK 8, 173, 176; Constitutional Court, AfP 2003, 537).
In this connection it is furthermore to be considered, that to the defendant 2 Price given information about the applicant and the half-an enhanced protection against disclosure to the public Ge Niessen, because of the – both tenured and employed teachers TREF fenden – Secrecy are included (§ 37 BeamtStG, § 3 Abs. 2 Ta-rifvertrag country; vgl. DIJuF-legal opinion from 21. March 2012 – J 7.250 Sm, Jamt 2012, 266 f.; Contactor / Maiwald, Civil Service Law of the Federal and State Governments, § 37 BeamtStG Rn. 7 [Stand: March 2009]). The illustrated behav-tens wise and skills the applicant has this fact in relation to school compared to their homeroom teacher, other teachers or shown against Mitschü-learning; Defendant 2 has become aware of those circumstances solely on the basic of their duties as a teacher.
Defendant 2 would you be interested in a correction of the alleged-lich inaccurate newspaper reports and at a presentation of the event-se in schools in B. however, may also pursue without serious restrictions, if she had made anonymous, the applicant (vgl. Senate Judgment
25
26
- 18 -
from 8. February 1994 – VI ZR 286/93, AfP 1994, 138, 139). Contrary to the version on the Appeals Tribunal the information provided about the applicant does not already before the publication of the book were known to a wider public and shaped the view of it. Due to the Berichterstat-tung in the media in November 2008 and January 2011 had become most known, that a daughter of A. X. at the primary school of Defendant 2 should skip the second grade and the defendant 2 this goal has not enabled. Unknown, however, were of the defendant to 2 shown in detail educational practices and the writing, Reading- and numeracy skills of the applicant. Nor was revealed their full or abbreviated form abge-first name. It can remain undecided, if the pre-name a second- or. Third year, have their name and primary school come to our notice, can ever be researched easily. Even if this is a part of the readers of the article managed, the applicant would not thereby their Ano-nymität lost. Because through the publication of the Bu-ches is the circle of persons, had the knowledge of the names of the applicants-rin, been significantly expanded (vgl. Constitutional Court, AfP 2010, 365 Rn. 33). An-differently than in the by the Senate on 5. November 2013 and 29. April 2014 entschie-which cases (VI ZR 304/12 and VI ZR 137 and 138/13) added the presently impugned representation of the applicant – at most – added in the public pre-existing state of knowledge in two ways something new. On the one hand not yet known first name of the applicant was abandoned; for ande-ren were concrete – shown by the applicant in primary school – Made behav-tens and skills have known and demonstrated their academic development. The representation of the applicant identified in the book of the defendants had thus contrary to what the Court of Appeal a inde-gen content infringement (vgl. Senate judgments 29. April 2014 – VI ZR 137/13, AfP 2014, 325 Rn. 22; from 29. June 1999 – VI ZR 264/98, AfP 1999, 350, 351).
- 19 -
Contrary to what the audit response also occurs not matter, whether the plaintiff's mother expressed following the publication of the book publicly on the events and to the defendant 2 has confirmed information reported. For a non-belonging by the disclosure in the public life issues caused Personally-keitsrechtsverletzung deleted not by, that the injured party or his legal guardian after the injury also disclosed to the expressed order stands (vgl. Senate judgments 14. October 2008 – VI ZR 272/06, AfP 2008, 610 Rn. 24; from 19. October 2004 – VI ZR 292/03, AfP 2004, 540, 543).
3. How does the revision rightly claims, the applicant due to the identified infringement by the defendants not only omission of the publication and distribution of the first edition of the book, thereof but also all other conditions and require the eBooks, if the applicant is a subsidiary and / or child of A .... X. is referred to and it so happens, as in the system as K 1 Paper submitted printout. Because of unlawful interference with the general right of the applicant lies in the fact, that where to by the defendant 2 authored and by the defendant 1 sold the book shown by the applicant in primary school Ver-tices (Maulereien, Beleidigtsein, Crying, if you something fails) and their alleged lack Cards, Reading- and numeracy skills are portrayed in identifying ways. As the Court of Appeal adopted a n-fend and revision reply not seriously call into question, the applicant was also without specifying their full or abbreviated name based on reported circumstances (name of the mother, Name of applicant as their daughter, Name of the school, Indication of the class and the year) identifiable for a significant group of people. The identifiability is namely already then given, if a person without naming at least for part of the reader- or Adressatenkrei-
27
28
- 20 -
ses due to the information given is sufficiently clear. It may be sufficient playback of partial information, which indicate the identity of the objectively interested readership readily or easily can identify (vgl. Senate judgments 10. December 1991 – VI ZR 53/91, AfP 1992, 140, 141; from 21. June 2005 – VI ZR 122/04, AfP 2005, 464, 465; BVerfGK 3, 319, 321 f.; Soehring in Soehring / Hoene, Press Law, 5. Edition, § 17 Rn. 3; Wen-zel / Burkhardt, The right word- and photojournalism, 5. Ed, Get. 12 Rn. 43).
Contrary to the opinion of the District Court notified Infor-mation were not known about the applicant even before the publication of the book to a wide audience and marked the view of it. Everything listed above al-ready, was due to the media coverage in November 2008 and January 2011 become most known, that a daughter of A. X. at the primary school of Defendant 2 should skip the second grade and the defendant 2 this goal has not enabled. Unknown, however, were the specific school the applicant's conduct and performance was her, with which the defendant 2 the alleged social, emotional and leis-tung even overtaxing the applicant has established in the third grade.
The time required for the injunctive relief repetition risk is given. She is suspected due to the infringement occurred (vgl. Senate judgments 27. More 1986 – VI ZR 169/85, AfP 1986, 241, 242; from 30. June 2009 – VI ZR 210/08, AfP 2009, 494 Rn. 29; from 19. March 2013 – VI ZR 93/12, AfP 2013, 250 Rn. 31). This presumption, Defendants have not invalidated. It is not eliminated by the criminal penalties of the defendants abge-handed desist particular. Because the object-ser declaration is only the use of the full or abbreviated
29
30
- 21 -
Name of applicant, but not the release of other circumstances, by which the applicant will be made visible.
4. The cease and desist order the defendant with respect to the first edition of the print product “H. ” is therefore not extinguished, because the defendant would be the fulfillment of its obligation impossible injunctive. The audit response shows no overridden in the fact Thing instances submissions on, after which the book on the market would be no longer available. A similar argument also does not follow from the judgment on appeal or the minutes. The new and disputed by the applicant Arguments of the defendant in the court of appeal, where-after the first edition was no longer available, is not to be considered in the revision process (vgl. Senate judgment of 23. September 2014 – VI ZR 358/13, BGHZ 202, 242 Rn. 20 f. mwN).
Contrary to the opinion of the district court is the defendant 1 of ih-rer omission obligation nor in respect of such copies ent-bound, which have already been delivered to the bookstores. After ständi gene jurisprudence of the Federal Court, the obligation to abstain from an act exhausted, by the – as in the case of dispute, – a continuing fault condition has been created, not in mere idleness. Rather, it also summarizes the order-making possible and reasonable actions on the Elimination-account of the disturbance source, if merely by the injunction order may be made (vgl. Senate judgment of 11. November 2014 – VI ZR 18/14, AfP 2015, 33 Rn. 16 titulierten to negative pledge; BGH, Case 22. October 1992 – IX ZR 36/92, BGHZ 120, 73, 76 f.; from 18. September 2014 – I ZR 76/13, IIC 2015, 258 Rn. 64; Decision of 25. January 2007 – C Eg 58/06, , A-RR 2007, 863 Rn. 17, each with further references). Accordingly, the omission of the debtor, to eliminate existing threats and
31
32
- 22 -
to prevent future violations, if necessary, act on Third, if and insofar as he in this – law or in fact – Can influence (vgl. Senate judgment of 28. July 2015 – VI ZR 340/14, World Cup 2015, 1664 Rn. 40; BGH, Judgment of 18. September 2014 – I ZR 76/13, IIC 2015, 258 Rn. 70; OLG Cologne, GRUR-RR 2008, 365; MMR 2010, 782, 783; There, WRP 2007, 605, 608; Teplitzky, Competitive claims and proceedings, 10. Ed, 57. Get. Rn. 26; Kohler in Kohler / Bornkamm, UWG, 33. Ed, § 12 Rn. 6.7).
5. Contrary to what the audit response is the Geltendma-chung of injunctive relief by the applicant's use, neither quite miss-it still violates the prohibition of harassment (§ 226 BGB). The prosecution is seen to respect the rights of the applicant, in particular-ticular their right to undisturbed childhood development; it is not intended, inflicting the defendant claims.
II. Because of the identified infringement of the applicant is against the defendant beyond a directed to the reimbursement of incurred legal costs claim for damages in the amount of 1.196,43 € from § 823 Abs. 1 BGB. The involvement of a lawyer was necessary for the exercise of the rights of the applicant. The determination of the amount of this claim for damages based on a counter-value of standing 30.000 € and a fee rate of 1,3 in accordance with § 14 Abs. 1 RVG, No.. 2300 RVG VV by the District Court is not legally be-queuing. Contrary to the revision, the applicant can not he set a according to one set of fees 1,5 demand calculated business fee. Because according to the jurisprudence of the Federal Court is an increase in the fiscal charge on the force for average cases usually fee 1,3 addition, according to No.. 2300 RVG VV only justified, if the activity was extensive or difficult and thus above average
33
34
- 23 -
(vgl. Senate, Decision of 5. February 2013 – VI ZR 195/12, , A-RR 2013, 1020 Rn. 7 f.; Judgment of 27. More 2014 – VI ZR 279/13, VersR 2014, 894 Rn. 20; BGH, Judgment of 11. July 2012 – VIII ZR 323/11, NJW 2012, 2813 Rn. 8 ff.). This is here – as the district court correctly pointed out – not the case. Held in the trial courts submissions, justifying a different assessment, does not point to the revision.
III. The other proposals of revision can not succeed.
1. This action is without, where addressed to the ban, to designate the applicant in the public and / or in relation to the book in identifying ways. As the district court correctly pointed out, lacks the commission risk necessary for injunctive relief. According to the findings of the District Court, it is common ground, that it did not come in the Vergan-tunity to a corresponding infringement. The fact that the Defendant 2, as the applicant has evidenced the factual hard Stel-payments in the appeal judgment to the appeal contends, reported the occasion ei-ner book presentation in detail about the case of the applicant, which could move the interested audience to buy the book and thereby lead to the identification of the applicant, not enough. This behavior does not give rise to fear, that the defendant 2 not limit future under Book Reviews on the abstract depiction of the Falls, but the applicant will bring in con-tion in an identifiable manner so. Further, held by the applicant in the Tatsacheninstan-zen submissions, the commission would be a concrete danger to entneh-men, does not point to the revision.
2. The applicant is also not entitled to payment of compensation to Geldent-.
35
36
37
- 24 -
a) According to the established case law of the Senate recognized be-founded the culpable violation of the general personality right egg be entitled to any monetary compensation, if it is a schwerwie-ing engagement and the deterioration can not be collected befrie-tory in other ways. Whether such a serious violation of your right exists, that the payment of a cash compensation is neces sary-, can be assessed only on the basis of all the circumstances of the individual case. Here, in particular the importance and implications of the intervention, To consider the occasion and motive of the agent and the degree of its fault (vgl. Senate judgments 9. July 1985 – VI ZR 214/83, BGHZ 95, 212, 214 f.; from 24. November 2009 – VI ZR 219/08, BGHZ 183, 227 Rn. 11; from 17. December 2013 – VI ZR 211/12, BGHZ 199, 237 Rn. 38 ff.; from 21. April 2015 – VI ZR 245/14, AfP 2015, 337 Rn. 33, each with further references). When offered an overall assessment is also a erwirkter injunction to be taken into account-; the title and its related Vollstreckungsmöglichkei th may affect the monetary compensation claim and so-even rule in doubt (vgl. Senate judgment of 25. More 1971 – VI ZR 26/70, DB 1971, 1660, 1661; Senate resolution of 30. June 2009 – VI ZR 340/08, juris Rn. 3). For the purpose of recognizing a monetary compensation in case of serious personality-lichkeitsrechtsverletzung finds its objective justification in the thought, that often no such claim violations of the dignity and honor of the people remained without sanction, with the result, that the legal protection of personality would wither (vgl. Senate judgments 9. July 1985 – VI ZR 214/83, BGHZ 95, 212, 215; from 15. November 1994 – VI ZR 56/94, BGHZ 128, 1, 15 f.; from 5. October 2004 – VI ZR 255/03, BGHZ 160, 298, 302; from 6. December 2005 – VI ZR 265/04, BGHZ 165, 203, 204 f.; from 17. De-cember 2013 – VI ZR 211/12, BGHZ 199, 237 Rn. 40; BVerfGE 34, 269, 292 f.; BVerfG NJW 2000, 2187 f.; Müller, VersR 2008, 1141, 1150).
38
- 25 -
b) According to these principles is the payment of a monetary compensation – also taking into account the planned by the revision regarding factual evidence the applicant in the lower courts – not mandatory. Although the interference with the applicant's right to unhindered development of their Personally-speed and undisturbed child contemporary development is significantly. The Senate has also assumed, that the book in February 2013 the applicant was discussed twice in religious education and the applicant out of fear, that their fellow students aware of the they would acquire relevant passages of the book, in temporal association with head- and abdominal pain suffered. On the other hand, it should be, that the unlawful intervention is not directed against the foundations of their personality; he does not hit the core of their personality. The impairments associated with it can be satisfactorily be-collected by the erwirkten of her in the present proceedings Unterlas-sungstitel and administrative proceedings. As mentioned in I. 4. carried out the obligation of the defendant to refrain also includes the duty, to eliminate the source of disturbance created by them in the context of the possi-chen and reasonable and prevent future ver-rights violations. As a result, the applicant gained sufficient satisfaction.
39
- 26 -
IV. The cost is based on § 92 Abs. 1 Set 1, § 97 Abs. 1 Code of Civil Procedure.
Galke Wellner von Pentz
Offenloch Roloff
Lower courts:
LG Köln, Decision of 18.09.2013 – 28 The 150/13 -
OLG Cologne, Decision of 11.03.2014 – 15 You 153/13 -

More business law topics: