Are Google Street Views archived

District Court Koeln Judgment Google Street View Personal Rights Infringement Photo House Building

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Decision dated: 01/13/2010

File number: 28 O 578/09

Regional Court of Cologne

In the name of the people

judgment

In the litigation

- Plaintiff -

Attorney: Attorney

against

- defendant -

Attorney: Attorney
 

1. The action is dismissed.

2. The costs of the litigation are charged to the plaintiffs.

3. This judgment is provisionally enforceable for the defendant against provision of security in the amount of 120% of the amount to be enforced.

T A T B E S T A N D:

The parties are arguing about the authority of the defendant to display the house property, which is co-owned by the plaintiff, with the address on its website.

The plaintiff is co-owner of the property on O-Strasse in ......... Cologne; she lives there too. The defendant is responsible for the Internet offer "Bilderbuch-Köln" which can be reached at the Internet address www.anonym1.de. The defendant explains its offer as follows:

"T-Buch starts where Google Earth leaves off - with individual photos of houses, streets and squares in Cologne. With many (ten) thousand current and historical photos, our city is depicted as it is today, but also as it was in the past In the coming years we want to be able to show a photo of every house in Cologne.

Linking photos with geodata and Google Maps enables easy virtual navigation through Cologne. Keywords enable a thematic representation. All streets for which there are photos are listed. More and more text about the individual photos, streets and districts is added.

The possibility of direct linking of photos (photo tagging) is new. This allows parts of photos to be linked to other photos, creating entire series of photos, city tours or picture stories. In restaurants, for example, you can see all the way down to the menu. "

The defendant's website can be used, for example, to systematically search for a house by entering the street name and house number. The result then provides an image of the building view, which can be clearly localized using geographic coordinates and thus assigned to a building address. When selecting a street from the corresponding menu, the photos of the corresponding street and the respective house number are displayed. In addition to current views, the "T-Book" also contains historical views from a large number of epochs, photographs created by well-known Cologne photographers as well as explanatory articles on the objects, their history and the photographers. The entire stock of images from the Conservator of the City of Cologne / Office for Monument Preservation, the image archive of B Immobilien AG and a large part of the image archives of the most famous Cologne art and press photographers from more than a century are published there. For the details of the content submitted by way of example, reference is made to Annex B 1 (page 40 ff. Of the file).

In May 2009, the plaintiff discovered that the defendant published photos of her house along with its address on its website. There are three images (Appendices K 6, K 7 and K 8 to the application). Entering the address "O-Straße 89" on Google showed that the first two hits of the search result linked to the defendant's offer and then made it possible to find the images of the plaintiff's house and its address. The plaintiff informed the defendant - together with her brother, who is also a co-owner of the property - in a letter dated May 25, 2009 that pictures of her house were unwanted and requested them to remove the photos immediately. The defendant refused to do so. Even in response to the legal warning that followed, the defendant did not issue a declaration of cease and desist with criminal penalties.

With the present action, she is making a claim for injunctive relief from Section 823 (1) BGB in conjunction with Section 1004 BGB analog or Sections 823 (2) BGB, Section 1004 BGB analog, Section 4 (1) BDSG against making the photos publicly available, naming the Address claims with reference to the fact that it concerns personal data about you. This is inadmissible. The depiction of her home in this way violates her general personal right under Article 2, Paragraph 1 in conjunction with Article 1, Paragraph 1 of the Basic Law, since her private address is published here along with an illustration of her housing and property relationships. As a result, she sees herself severely impaired in her privacy and security interests. She fears being spied on by the defendant's offer or specifically referred to with reference to her housing and property conditions. The building views with address details can be assigned to the plaintiff without much effort. The burglary protection of a house can also be easily recognized through the pictures. She claims that she does not have to tolerate this in the general interest either. In particular, it is also possible for the defendant to archive the Cologne city architecture comprehensively without specifying the personal data. Finally, their legal opinion also corresponds to a resolution of the supreme supervisory authorities for data protection in the non-public area of ​​November 13/14, 2008.

The defendant could not invoke the special position of the media, since a mere automatic listing of editorial contributions does not represent its own journalistic-editorial design (BGH NJW 2009, 2890). This applies in particular because the images uploaded to the defendant are made publicly accessible by the defendant without their own processing. Providers comparable to the defendant, such as sightwalk.de, granted the parties concerned a right to object to the publication of house numbers, among other things. Google Streetview also offers the uncomplicated option of deleting recordings.

The applicant requests

to condemn the defendant, avoiding a fine of up to € 250,000.00 to be determined by the court for each case of the offense and, in the event that this cannot be recovered, to enforce regular detention or regular detention for up to 6 months to the managing director of the defendant to refrain from

the pictures attached in Annex K 6, K 7 and K 8

in connection with the naming of the street and house number "O-Straße 89" without the plaintiff's permission to make it publicly accessible and / or to have these actions carried out by third parties, as was done by making it publicly available on the website for which the defendant is responsible, www. anonym1.de, under the links http://www.anonym1.de/Fotos/5796, http://www.anonym1.de/Fotos/5797, http://www.anonym1.de/Fotos/5795

happened. The defendant requests

reject the complaint.

The defendant asserts that when weighing up the freedom of trade protected by Art. 12 GG as well as the freedom of the arts and the press protected by Art. 5 GG are to be taken into account. This also applies within the framework of the provisions of the Data Protection Act, as expressed in the media privilege contained in Section 41 BDSG. This is the case because the defendant not only reproduces the data it has determined, but also prepares them optically and editorially. More than 50,000 of the photographs seen in the T-book were created by the defendant's photographic staff themselves. Images uploaded by third parties would also be processed by the defendant prior to publication and some of them would be given very detailed text (Annex B 4, pages 77 to 81 of the file). This represents its own journalistic and editorial design, an essential preparation of the data material in the public interest and falls under the area of ​​the "electronic press". She claims that the resolution of the supreme supervisory authorities for data protection has changed to the extent that the requirement that house numbers should not be recognizable is no longer pursued in practice by the data protection authorities.

She further asserts that a general balancing of the interests of the parties also leads to the admissibility of the actions challenged by the lawsuit. The defendant presented a picture of the city of Cologne over time and made this available to the interested public. This would satisfy the general interest in urban history, urban development and a generally accessible portal for photo art, urban history, urban development and architecture. The images can only be localized using geospatial data. The removal of individual images would endanger the achievement of these journalistic purposes in the long term, since the interested public is dependent on the most comprehensive image material possible when researching the areas listed above. The defendant can also not be expected to decide on the removal of images if, for example, several authorized persons raise contradicting claims. In contrast, the interests of the plaintiff would not be affected at all or at least not excessively. Your privacy is not affected at all because the images are limited to the street view - unlike other services that show a house in all conceivable perspectives after entering the address.

For further details of the state of affairs and the dispute, reference is made to the content of the written statements exchanged by the parties and to the documents submitted by them which were the subject of the oral hearing.

E N T S C H E I D U N G S G R Ü N D E:

The action is unfounded.

The plaintiff has no claim against the defendant on the omission of the publication of photos of her house in connection with the naming of the street name and the house number from § 823 paragraph 1 BGB in conjunction with § 1004 BGB analogous or §§ 823 paragraph 2 BGB, § 1004 BGB analogously, § 4 Abs. 1 BDSG. The disputed publication does not interfere with your personal rights, nor is you entitled to an injunction based on data protection principles after weighing up.

I. Initially, the Chamber actually assumes that the view of the facade of the Plaintiff's house given by the defendant on the Internet, stating the street and house number, does not directly lead to the name of the Plaintiff as co-owner and resident. This remains anonymous for the viewer of the portal. However, if you know a certain street and house number, it is basically possible to determine which people live there, be it by inspecting it on site. Ultimately, the viewer of the defendant's website is not presented with any more than the person who walks or drives through the street, and who is also able to immediately identify the names of the residents by looking at the doorbell signs.

II. 1. Regardless of this, the Chamber assumes that the plaintiff is affected in terms of personality rights, with the result that she is actively legitimized. The individual concern in terms of press law requires that the representation deals with the claimant as an individual. In case of doubt, the presumed recognizability is to be affirmed not only when a name is mentioned, but also when an earlier name, in particular the name at birth, is mentioned, as well as when a pseudonym is mentioned, provided that the bearer in question is actually meant or at least a corresponding impression is created. Recognition can also follow from the listing of individualizing features, e.g. description of details of the curriculum vitae, naming of place of residence, occupation, etc. (Burkhardt in Wenzel, The right of word and picture reporting, marginal number 12.43). According to this, it can be assumed that the plaintiff can in any case be identified by her home address and can therefore be individualized.

2. The Chamber also basically assumes that an invasion of privacy can exist if photos of the exterior view of a residential building are published or disseminated against their will by naming them - or possibly other comparable features that can be easily customized for the average recipient . However, just specifying the address of the house shown is not sufficient as such an individualizing feature. The decisive factor for the question of the violation of personal rights is whether, according to the specific circumstances, the person concerned may have a reasonable expectation, recognizable for third parties, that his private circumstances will remain hidden from the public and will not be noticed by it (BVerfG NJW 2006 , 2836, 2837) and whether the publication has penetrated this private sphere and whether the data subject's right to self-determination when disclosing their personal circumstances is impaired (see BGH GRUR 2009, 1089, 1090; GRUR 2004, 442 - Feriendomizil II ; GRUR 2004, 438 - Feriendomizil I; BVerfG, NJW 2006, 2836, 2837). However, the assumption of a violation of personal rights is far removed if only the photographing of the outside view of a property from a generally accessible place and the dissemination of such photos are in question, because the photos only concern the area that is already facing outwards (BGH GRUR 2009, 1089, 1090). Because the expectation of a lack of knowledge by the general public is fundamentally far away if a private property is visible to everyone from publicly accessible places. Accordingly, the highest court rulings deny any impairment of personal rights, provided that the depiction of the property only reflects what is readily apparent to the on-site viewer (BVerfG NJW 2006, 2836, 2837). So it is here: for the on-site viewer, the house and address of the plaintiff are at least as obvious as on the defendant's website.

It is correct that something else can apply if the anonymity of a property is removed by assigning the name of the residents, so that images can be assigned to a person and thus gain additional information content (BGH GRUR 2009, 1089, 1090). The defendant's communication does not gain this information content; The indication of the postal address of the house does not contain any information comparable to the naming.

Furthermore, the chamber does not fail to recognize that the defendant uses its portal for commercial purposes. However, from this aspect, too, there are no indications for the assumption of a violation of personal rights. In principle, the commercial distribution of the image of someone else's house can also constitute a violation of personal rights (cf. BGH, GRUR 1971, 417f - Tenerife; NJW 1989, 2251 ff. - Friesenhaus). However, this presupposes that the impression arises that the owner of the house is behind the advertising of the publisher, supports it or has received money for it (BGH, loc. Cit.). Such an impression is not created because the defendant has stated that it has set itself the goal of reproducing the streets of the city of Cologne with their respective buildings as completely as possible. Therefore, it is far from assuming that the owners of the houses shown have any kind of connection to the defendant.

III. From data protection aspects, too, the result - after weighing up the interests of the parties concerned - does not result in a claim for injunctive relief on the part of the plaintiff, although it can be assumed that the disputed information published by the defendant (illustration of the house with street and house numbers) is personal data are to be assessed in relation to the applicant.

1. The collection, processing and use of personal data is permitted according to Section 4 (1) BDSG if the law permits data processing or if the person concerned has consented. The concept of personal data includes all information that says something about a reference person or can be associated with him. These are not only classic data such as the name or place of birth, but also expressions of opinion, assessments and value judgments that relate to a specific or identifiable person affected, the reproduction of oral and written statements of a person concerned and the presentation of private or business behavior of a person concerned (see BGH NJW 2009, 2888, 2890 mwN). On the basis of this standard, a specific address should also be included when depicting the house, since - as stated - the plaintiff can be identified as the resident of this house.

2. The Chamber tends to grant the defendant the media privilege according to § 41 BDSG - without this fact being decisive in the end - since their activity is not limited to depicting certain locations and pinpointing them in the city map, but these In addition, information on the background of the city's history, architecture, etc. there - even if these are not related to each individual figure. The defendant therefore does not limit itself to posting its own or third-party image material in order to then assign it to certain locations in Cologne.

The media privilege largely exempts the press from complying with data protection regulations when fulfilling its guaranteed and guaranteed tasks in Article 5, Paragraph 1, Sentence 2, because without the collection, processing and use of personal data, even without the consent of the person concerned, journalistic work would be done not possible. § 41 BDSG applies to the press in the constitutional sense, consequently also to the "electronic press". Telemedia are basically covered by the media privilege if they fall under the press term of Article 5, Paragraph 1, Clause 2 of the Basic Law 1 BDSG, the special status of the media under data protection law is tied to the fact that the collection, processing and use of personal data serves for publication in the press. The decisive factor is that the data are intended "exclusively for their own journalistic, editorial or literary purposes". Transferred to the field of telemedia, the pure transmission of collected data to users cannot fall under the special protection of the press, because the mere automatic listing of editorial contributions does not yet represent a journalistic-editorial design of its own. Only when the opinion-forming effect for the general public is a defining component of the offer and not just a decorative accessory can one speak of such a design (BGH NJW 2009, 2888, 2890).

The Chamber assumes that these requirements for the defendant's offer are met. The content presented by the defendant in Annexes B 1 and B 4 shows that it not only provides the above information about the life and work of famous Cologne photographers - whose pictures of Cologne streets it shows - or information about historical images. It also shows, for example, "nocturnal street scenes after winning the semi-finals of the European Football Championship 2008" or - as can be seen in Appendix B 4 - historical and architectural information on some addresses. For example, if you take the description of the house at H-Straße, the reconstruction by the owner family is shown in detail. The goal of wanting to add more and more text to the individual photos, streets and districts can also be found in the description "What is T-Book?" (Appendix K 3). The offer is therefore not comparable with the portal that was the subject of the decision BGH NJW 2009, 2888 ff. - Spickmich and for which the BGH did not accept the press privilege. In that portal, only the number of assessments submitted was recorded and an arithmetic mean was calculated from the (school) grades submitted, so that journalistic-editorial processing that could open up the use of the media privilege was ruled out.

3. Regardless of the question of a possible press privilege for the defendant, in view of the intensity of encroachment on the plaintiff's rights on the one hand and the defendant's rights on the other, the board assumes that the defendant's action is permissible even taking into account the freedom of communication alone under Article 5 (1) of the Basic Law is.

The plaintiff has no claim to omission of the publication of the corresponding data according to §§ 823 Abs. 2, 1004 BGB analogously, in conjunction with § 4 Abs. 1 BDSG by their transmission to the querying user. Rather, this is permissible under Section 29 (2) BDSG.

a) In principle, the permissibility of the transmission of the data according to § 29 Paragraph 2 No. 1 lit. a and 2 BDSG is tied to the fact that the data recipient credibly demonstrates a legitimate interest in knowledge of the data and no reason for assumption there is a legitimate interest of the person concerned in the exclusion of the transmission. The right to freedom of expression also includes the right to be heard and to spread your opinion. There is the principle of the free exchange of opinions not only for topics that are of particular concern to the public (see BVerfG NJW 1966, 1499; BVerfG NJW 1966, 1603; BVerfG NJW 2008, 1793, 1797; BGH NJW 2009, 2888 ff. ).

b) In this context, the Chamber initially assumes that the storage of the disputed data in connection with the plaintiff's house was even permissible.

The storage of data is permissible according to § 29 Paragraph 1 No. 1 BDSG if there is no reason to assume a legitimate interest in the exclusion of data collection and storage. The term "legitimate interest", which needs to be filled in, requires a weighing of the interests of the data subject in the protection of his data and the importance that the disclosure and use of the data has for him, with the interests of the users for whose purposes the data is stored, taking into account The objective value system of the fundamental rights. The interests of the person concerned worthy of protection can lie in the protection of their personal rights, but also in the defense against economic disadvantages, which are to be feared with the publication of the data. If the person concerned objects to the data collection, he has to explain and if necessary If the weighing up based on the principle of proportionality does not offer any reason to assume that the storage of the data in question affects the interests of the data subject worthy of protection for the purpose pursued, the storage is permissible (BGH NJW 2009, 2888 , 2891).

The right to informational self-determination on the part of the plaintiff is the right of the individual to basically decide for himself whether and when and within what limits his personal data will be made public (see BVerfG NJW 1984, 419; BVerfG NJW 2008, 822, 826). It is not limited to the function of the citizen's right to defend himself against the state, but rather, as a fundamental right, has a third-party effect and thereby also influences the values ​​of private law (cf. BVerfG NJW 1958, 97 - Lüth). This corresponds to the regulation in Section 27 (1) No. 1 BDSG, according to which the data protection regulations also apply to non-public bodies.

The collection and storage of photos showing the house she lives in, including its postal address, only marginally affects the plaintiff's right to informational self-determination. Because, as stated, it is information that is easily accessible to every passerby who walks on the street inhabited by the plaintiff. Whether it concerns matters worthy of protection that stand in the way of the data collection and storage by the defendant is to be determined by weighing against the constitutionally guaranteed freedom of communication of the defendant and the users of its internet offer (Art. 5 I GG).

In case law, due to the peculiarity of the general right of personality as a framework law, the scope of which is not absolutely certain, criteria for weighing have been worked out, among other things according to the graded protection of certain spheres in which the personality is realized. According to this, the so-called sensitive data, which can be assigned to the intimate and secret sphere, enjoy a particularly high level of protection. However, the right to self-determination is also protected when revealing personal life matters that are only part of social and private life. However, the individual does not have absolute, unrestricted control over "his" data, because he develops his personality within the social community. In this, the information, even if it is personal, represents a part of social reality that is not exclusive to the person concerned Rather, a decision has to be made on the tension between the individual and the community in terms of the person's relationship to and bond with the community. Therefore, the individual must generally accept restrictions on his right to informational self-determination if and to the extent that such restrictions are based on sufficient reasons for the common good or predominantly The legal interests of third parties are borne and the limits of what is reasonable are still preserved when the severity of the interference and the weight of the reasons justifying it are weighed up (BGH NJW 2009, 2888, 2891, 2892 mwN).

Taking these criteria into account, the plaintiff has to accept the storage of the disputed information. After all, the defendant does not provide any sensitive data about her that can be assigned to the intimate or secret sphere. Rather, the plaintiff's address necessarily opens up in many respects to third parties in the plaintiff's social life. It is part of their social reality that the address and the external image of their house are or become known to a large number of people, e.g. when it comes to delivering letters or parcels to them. Your name on the doorbell is revealed to every passerby who looks at it; Such persons will then also be able to assess what the living conditions of the residents of the house could be: whether they could be poor or rich, old or young. On the other hand, the defendant satisfies the general public's interest in information by providing information about the cityscape, its history and architecture; She places this information in the spatial context of the images of buildings within the city map. It cannot be assumed that the plaintiff could have been specifically affected by the depiction of her house. This means that there is no legitimate interest on the part of the plaintiff against the collection and use of the data by the defendant, so that the storage of the data is permissible in accordance with Section 29 (1) No. 1 BDSG.

c) Under the prerequisites of this consideration, the Chamber assumes that the dissemination of this stored information is also permissible, considering that the principle of the free exchange of opinions does not only apply to topics that are of particular concern to the public.

If the constitutionally protected distribution of such contributions for information and opinion-forming in the form of reproducing images of buildings with information about their address on the Internet were only permitted, provided that personal data were not transmitted, freedom of expression and information would be limited to statements without data-protected content, unless the data subject has given his or her consent. A particular difficulty would arise for offers like that of the defendant from the fact that if property and ownership of houses or individual apartments fall apart, many different parties involved could be affected, whose interests in a picture below the offer of the defendant could also be diametrically different, If one considers, for example, the partly also historical photo collection of the housing association B. The presentation of content that is informative for the general public, such as that of the defendant, would be largely made impossible because all information, even indirectly making the residents or owners of the houses shown, identifiable is removed from the system would have to if the consent of the data subject is generally missing for the disclosure. Restrictions on the freedom of opinion and information protected by fundamental rights are only legal if they are proportionate (BVerfG, NJW 2001, 503, 505). The admissibility of the transmission of the data on the defendant's Internet platform must therefore be assessed on the basis of an overall balance between the personal rights of the person concerned and the information interest of the person to whom the data is transmitted via the Internet. The interests of the data subject that are worthy of protection must be compared with the interests of the person accessing the data and those of the person who transmitted the data in their disclosure. The type, content and informative value of the data complained about are to be measured against the tasks and purposes that are used for storage and transmission (see BGH, NJW 1986, 2505, 2506).

With regard to the low informative value and intervention quality of the data with regard to the plaintiff, the present case is the information provided by the defendant to a broader public about Cologne locations, their history and other topics, as well as the fact that the collection of this data is more permissible Manner was carried out for the purpose of transmission, this is also permissible in compliance with the defendant's fundamental right to grant and obtain information. The fears put forward by the plaintiff about the possibility of spying on her house appear theoretically in view of the fact that at least the same information can be collected from every passerby.

IV. The procedural secondary decisions follow from §§ 91, 709 ZPO.

Disputed amount: 19,500.00 euros.

Signatures