Bundesgerichtshof; 2016-10-25; VI ZR 678/15
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2016:251016UVIZR678.15.0
Date: 2016-10-25
Subject matter: Lugano Convention
Origin: Germany

82016DE1025(51)_ENG_SUMJURE
JURE summary
JURE summary
The wife of former racing driver Michael Schumacher (hereinafter the ‘plaintiff’), who is domiciled in Switzerland, sued a Swiss broadcasting company (hereinafter the ‘defendant’) reporting in the territory of the Federal Republic of Germany for the omission of an internet image. On the website www.srf.ch, the defendant had published pictures and videos of the consequences of Michael Schumacher’s accident and had presented the media’s handling of it.
Special jurisdiction is established for torts according to Article 5(3) of the new Lugano Convention (¹) in conjunction with Article 3(1) of the new Lugano Convention. An injured person, in lieu of a liability claim for the total damage at the place of the author’s registered office, may also bring the action to the courts of any Member State in whose territory the published content was accessible on the internet.
The Landgericht Köln (hereinafer ‘the Court of First Instance’) accepted its international jurisdiction and declared the action admissible with an interim judgment.
The Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’) rejected the defendant’s appeal, but approved it for revision.
By the appeal on points of law in the Bundesgerichtshof (the Federal Supreme Court; hereinafter ‘BGH’), the defendant sought to dismiss the action for inadmissibility.
The defendant’s main argument is that image reporting is a sovereign act (²) and that the defendant can rely on the principle of state immunity. There establishes a procedural obstacle. However, this is not the case.
The question of state immunity is determined according to the European Convention on State Immunity of 1972. According to Article 27(2), the defendant may also be sued as a private person in another contracting state if it is not necessary to decide on the exercise of the acts of sovereignty.
Citizens’ complaints against media institutions that have the admissibility of a radio or television broadcast in relation to the right to privacy as the subject matter are private law disputes.
The core area of the sovereign activity of a state, which is recognised under international law, is not affected. The plaintiff’s complaint is directed against the defendant’s act, which affected the plaintiff’s personality right through image reporting. Under the relevant German law in the context of the relationship between a citizen and a broadcaster, the matter of the plaintiff’s complaint is of a private law nature (³).
It should be noted whether the omission can be technically limited to the territory of the Federal Republic of Germany only. The Court of Appeal has dealt with this question and with the technical possibility of so-called geo-blocking. This is to deny access to the content provided for retrieval based on the end user’s IP address.
The BGH rejected the defendant’s appeal on points of law against the judgment of the Court of Appeal.
(¹) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(²) acta iure imperii.
(³) BGH judgment, VI ZR 246/74. BGHZ 66, 182, 185.