Page 2: Not easy is not so difficult

Contents

And therein lies the crux of the matter: Because the claims that the company is taking money out of people's pockets, does not fulfill legal obligations and has a commercial register entry with "fraud and lies" are considered expressions of opinion (and not defamatory criticism, an attack on human dignity or an untrue statement of fact), YouTube would have to weigh up the right to protection of personality against the rights to freedom of the media and freedom of expression. Because this balancing is necessary, the illegality is not "easily recognizable", the court concludes. Therefore, YouTube is not obliged to delete content in the event of a dispute.

A further complication may be the complainant's entitlement (active legitimation): If there is a claim for deletion, then the person affected in their personal rights has it. As a rule, third parties cannot assert the claim, but there are exceptions. Some of the allegations made in the specific video are directed against the GmbH, not against Professor R., who is a shareholder but does not act on behalf of the company. The professor sued alone. "Since the plaintiff is only indirectly affected", according to the ruling, "a complicated legal examination is required with regard to his active legitimacy". So this examination is also difficult, or at least "not without difficulty".

(No) obligation to investigate

In principle, the data subject must provide the host provider with the information necessary for the assessment (primary duty of disclosure). Under certain circumstances, however, the host provider must conduct its own investigations and, for example, question the uploader about the matter (secondary duty of disclosure). However, according to the Higher Regional Court of Nuremberg, this only applies if the person concerned "has no further knowledge of the relevant circumstances and also no possibility of further clarification of the facts, while (the host provider) can and can reasonably be expected to provide further details." If the host provider breaches this obligation, the fiction that it would have acknowledged the complainant's submissions may apply in subsequent civil proceedings.

The host provider is not obliged to make a secondary presentation if "the facts from the contested post originate from the sphere of the person concerned or if it is possible and reasonable for the person concerned to clarify the facts further - for example by contacting the user themselves", says the OLG. It considers these conditions to be met. In this specific case, this means that the professor cannot demand that YouTube carry out investigations or question the uploader. The professor must do this himself if he wants to substantiate his request for deletion and make it easy for YouTube to recognize the illegality of the video.

Right to be forgotten

Regarding the right to be forgotten standardized in Article 17 GDPR, the court first notes that the video contains personal data of the plaintiff – a basic requirement for the application of the GDPR. However, it is questionable whether YouTube is to be regarded as the data controller. If not, YouTube would be the wrong contact. If it was, the plaintiff would have had to provide "relevant and sufficient evidence" that the personal information was "manifestly inaccurate". He did not do this, which is why he could not derive an obligation to delete from the right to be forgotten anyway, regardless of whether YouTube was responsible for this under data protection law or not. The court therefore expressly leaves the question of jurisdiction open.

The plaintiff would therefore have to take direct action against the journalist to protect both his personal rights and his personal data. The plaintiff has not claimed that this would be unreasonable. In its final judgment of July 23, 2024 (case no. 3 U 2469/23), the Nuremberg Higher Regional Court did not allow an ordinary appeal against the judgment before the Federal Court of Justice.

Personal rights are not conclusively codified in German law. They are derived from the right to free development of the personality (Article 2 (1) of the Basic Law) and the right to human dignity (Article 1 (1) of the Basic Law). Directly, it serves to defend against sovereign interference, indirectly it also has a third-party effect, in this case on civil law matters between private individuals.

(ds)