OLG Köln; 2015-11-10; I-15 U 121/15
Decision by national courts in the field of European Union law — ECLI:DE:OLGK:2015:1110.15U121.15.00
Date: 2015-11-10
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82015DE1110(51)_ENG_SUMJURE
JURE summary
JURE summary
The spouse of a former racing driver (hereinafter ‘the plaintiff’) living in Switzerland filed an action against a Swiss radio broadcaster (hereinafter ‘the defendant’) seeking that the defendant cease and desist from showing contested footage on its website in Germany. The defendant published pictures and videos on its website about the consequences of a ski accident that the plaintiff’s husband had had, along with media coverage of the accident.
Special jurisdiction according to the place of the harmful event under Article 5(3) of the new Lugano Convention (1) was given. Besides the domicile of the wrongdoer, the injured party was also entitled to file the action in the courts of the Member State where the content had been made available.
The Landgericht Köln (hereinafter ‘the Court of First Instance’) found itself to hold international jurisdiction and decided by an interim judgment that the action was admissible.
The defendant lodged an appeal against this decision with the Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’).
As the main argument of its defence, the defendant claimed that media coverage represented an act of sovereign right (2) and invoked the principal of state immunity, thus preventing the proceedings from being conducted.
The Court of Appeal stated that the difference between acting as a sovereign and a non-sovereign entity was to be determined not according to the motive or purpose of an activity, but the character of the state actions according to the principles of German law. In addition, it was necessary to assess the result from the perspective of comparative and international law.
Actions by citizens against media companies relating to the admissibility of radio or television coverage regarding personality rights are private disputes.
Furthermore, the Court of Appeal dealt with the question of whether a possible cease and desist order could be limited solely to Germany through the use of ‘geo-blocking’. With this technology, access to the published content could be prevented on the basis of the end user’s IP address, data transmission or the data transmission speed.
The Court of Appeal dismissed the defendant’s appeal against the interim judgment of the Court of First Instance.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Acta iure imperii.