Bundesgerichtshof; 2022-08-09; VI ZR 1244/20
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2022:090822UVIZR1244.20.0
Date: 2022-08-09
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82022DE0809(51)_ENG_SUMJURE
JURE summary
JURE summary
The operator of a holiday resort domiciled in Germany (hereinafter ‘the plaintiff’) filed an action against the operator of an online travel platform (hereinafter ‘the defendant’) domiciled in Switzerland seeking the issuance of a cease-and-desist order.
Users of the defendant’s travel platform can, upon registration with their email address, book different hotels and submit their reviews for the provided services. According to the Users Policy, the users were allowed only to review the services they used.
With its action, the plaintiff demanded that the defendant cease publishing negative reviews posted by several users of the travel platform regarding the services offered by the plaintiff. The plaintiff argued that the users were not its customers, and that such reviews damaged the plaintiff’s reputation.
The Landgericht Köln (hereinafter ‘the Court of First Instance’), as the court seised under Article 5(3) in connection with Article 60(1) of the new Lugano Convention (1), dismissed the action. Based on the appeal of the plaintiff, the Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’) modified the decision of the Court of First Instance partially and ordered the defendant to cease to publish the contested reviews with the exception of the user ‘Elisabeth’.
The defendant was liable as an indirect wrongdoer. The arguments of the plaintiff that the authors of the reviews had not been guests at the plaintiff’s facility were sufficiently concrete for the court to uphold the action.
The revision filed by the defendant with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) was found admissible but had no success.
The Court of Appeal was correct to state that with regard to the plaintiff being a legal entity, a cease-and-desist order could not be requested under the General Data Protection Regulation (2) but under Article 1004(1)(2) and Article 823(1) BGB (3) in connection with Article 2(1) and Article 19(3) GG (4) instead.
As a hosting service provider, the defendant was not freed from liability for the content of the websites it operated. However, as an indirect wrongdoer, the plaintiff was not obliged to examine beforehand whether the posts uploaded by the users potentially constituted a breach of rights. The liability arises at the moment when the provider learns of such a breach. It could be reasonably assumed that the authors of the negative reviews had not been guests at the plaintiff’s leisure resort, making the encroachment into the personal rights of the plaintiff as a company illegal. The plaintiff could plausibly demonstrate the occurrence of the breach of its rights.
The Supreme Court dismissed the revision of the defendant against the decision of the Court of Appeal.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
(3) Bürgerliches Gesetzbuch (German Civil Code).
(4) Grundgesetz für die Bundesrepublik Deutschland (Basic Law for the Federal Republic of Germany).