The obligation of the board member of an association to hand over the administration rights to a Facebook page, which the board member has created for him using a private account
LG Frankfurt 15. Civil Appeal from the 24.07.2020 to Az 2-15 S 187/19, 32 C 3091/19 (48)
The obligation of the board member of an association according to § 27 Abs. 3 S. 1 i.V.m. § 667 BGB includes the administration rights to a Facebook page, which the board member, albeit due to the system, using a private account, on behalf of the association for this.
first AG Frankfurt am Main, 18. November 2019, 32 C 3091/19 (48), Judgment
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On the appeal of the defendant and with the dismissal of the remainder of the appeal, the judgment of the Frankfurt am Main Local Court of 18.11.2019, Yeah: 32 C 3091/19 (48), partially amended and newly worded as follows for clarification:
It is noted, that the legal dispute has largely been settled.
The defendant has to bear the costs of the dispute.
The judgment under appeal and this judgment are provisionally enforceable without security.
The revision is not approved.
Rationale
I.
From the presentation of the facts according to §§ 540 Abs. 2, 313a Abs. 1 S. 1 ZPO abgesehen.
II.
The appeal is admissible, particular form- been and timely filed and justified (§§ 517, 519 f. Code of Civil Procedure). In the matter she has no success with her motion to dismiss. Rather, at the request of the plaintiff, the settlement of the dispute was determined.
1.
The plaintiff was able to resolve the dispute without filing a cross appeal (§ 524 Code of Civil Procedure) declare unilaterally done. The unilateral declaration of completion forms a according to § 264 No.. 2 ZPO privileged change of action (BGH, NJW 2002, 442). As with the completion of a service- an application for a declaration is passed, it is an application restriction. In this situation, no more than the rejection of the appeal should be achieved by the application for settlement (vgl. BGH, NJW 2008, 2580; Musielak / Voit / Ball, Code of Civil Procedure, 17. ed. 2020, § 533 Rn. 3 m.w.N.).
2.
The application for the establishment of the completion of the main thing is justified.
Then this is the case, if the original action was admissible and well-founded and has become inadmissible or unfounded as a result of a subsequent event (vgl. BGH NJW 1986, 588; Zöller / old hammer, Code of Civil Procedure, 33. Edition 2020, § 91a, Rn. 43).
These requirements are met.
a) The action was originally admissible.
This also and especially applies to the amendment of the complaint made at the hearing in the first instance, to which the defendant has refused consent. The district court has this change of action, without specifically discussing this, received for permissible. This is not objectionable, because the admission of the amendment of the complaint as relevant according to § 263 ZPO arises unproblematically from the course of the process and the overall content of the reasons for the judgment (vgl. on this MüKoZPO / Becker-Eberhard, 6. ed. 2020, § 263 Rn. 41): As stated in the undisputed part of the facts and thus binding for the appellate body, the defendant changed the name of the Facebook page a week before the trial date, to which the plaintiff reacted by changing the name of the Facebook page in his complaint.
This application is sufficiently specific. The reference to an attachment to concretize the way, how to transfer administration rights to a Facebook page, is harmless.
b) The lawsuit was originally well founded.
The plaintiff stood, as the district court rightly and with convincing justification accepted, a claim against the defendant to surrender the Facebook page, in the manner as requested, d.h. by transferring administration rights to the member of his board of directors designated by the plaintiff.
aa) The district court rightly has this right to § 27 Abs. 3 S. 1 i.V.m. § 667 BGB supported. After that, the board member of an association has to surrender the one like an agent, what it receives for the performance of its office or derives from it (vgl. BeckOGK / Mark, 01.07.2020, § 27 BGB Rn. 102). The surrender obligation extends to every advantage gained, including such items, which the agent himself produced, d.h. made or purchased (vgl. MüKoBGB / Schäfer, 8. ed. 2020, § 667 Rn. 17).
Online accounts too, for example a Facebook account, these include, if they were created in the exercise of the office (vgl. MüKoBGB / Schäfer, 8. ed. 2020, § 667 Rn. 21 m.w.N.). This is to be distinguished from privately used, but with references to the client created Facebook accounts, which are then exempt from the obligation to surrender, if they have a substantial private share (vgl. MüKoBGB / Schäfer, 8. ed. 2020, § 667 Rn. 21 with reference to AG Brandenburg, NZA-RR 2018, 364).
In application of these principles, administration rights to a Facebook page are then covered by the disclosure obligation, if a board member, albeit due to the system, using a private account, on behalf of the association created a Facebook presence for them.
bb) Such is the case here.
In fact, this is of course a matter of dispute. The district court rightly has the reciprocal party submissions, the submitted documents and the information provided by the defendant in the course of their personal hearing were evaluated as a whole in this sense.
(1) The statements made by the defendant speak most strongly in favor of this assessment. At the hearing before the local court, she stated the following: “I set up the Facebook page for the association and informed my fellow board members about it at the meeting. Because they have no idea about Facebook, did you trust me and agreed to it, so to speak " (Minutes of the meeting from 28.10.2019, S. 2; Bl. 455 R d.A.). Understanding speaks from these words, to have performed an activity in the capacity of a board member. To what extent the defendant was commissioned with this in the narrower sense by means of a formal resolution, is not critical. Because § 27 Abs. 3 S. 1 refers to the contract law, sets for surrender claims from § 667 BGB but not ahead, that the individual board member i.S.v. § 662 BGB was commissioned, but alone, that it has gained something from the exercise of its office (vgl. BeckOGK / Mark, 01.07.2020, § 27 BGB Rn. 102).
With this information, the defendant validly admitted a central assertion of the plaintiff's side. That this assertion contradicts the written submission, is harmless, because the party can also admit facts in the legal process, which her lawyer had previously denied (Zöller / old hammer, Code of Civil Procedure, 33. ed. 2020, § 85 Rn. 9).
(2) That the Facebook page, initially maintained by the defendant alone, should be one side of the association and, in their understanding, it was, is also illustrated by it, that all posts are kept in the we-form and often expressly refer to events of the association or the association itself in this or other way, z.B. am 23.10.2011: "It is important, that this site will be better known. …“ (vgl. for this and for further examples Appendix K 11; Bl. 128 ff. gives.).
(3) Without having to investigate the evidence of the plaintiff regarding the content and course of board meetings, further information can be found in the documents submitted, that it corresponded to the understanding of all board members, that the page should be the club's Facebook presence, in particular the agenda of 06.01.2011 ("Facebook editing X ..."; Appendix K 10; Bl. 127 gives.) and the links to the Facebook page in the club's flyer (Appendix K 12; Bl. 400 f. gives.) and in the club history compiled by the defendant (Appendix K 13; Bl. 402 f. gives.).
(4) The statements made by the defendant after they left the board are also an important indicator in this regard. So she speaks in the year 2019 from that, To have set up a "club page" on Facebook (Appendix K 7; Bl. 66 f. gives.) and from the desire, To have nothing more to do with “the club's Facebook page” (Appendix K 17; Bl. 407 gives.), because they want to withdraw into passive membership and no longer have any interest in controlling the site (Appendix K 16; Bl. 406 gives.). These utterances are with the assumption, the side was the defendant's own and private side, incompatible.
That the statements were taken out of context, as the defendant submits across the board, is related to reading the utterances, as made possible by the submitted attachments, incomprehensible.
It is true, that such subsequent statements cannot influence the legal qualifications of the board of directors at that time. Yet it follows from them, that the defendant did not subsequently cast doubt, that she had created and operated the site at the time as a board member for the association. Therefore, they very much suggest the conclusion, that this was actually the case at the relevant point in time.
(5) That in the profile of the Facebook page initially not, like 2016 or 2017 an, the club name appeared, but the catchphrase "...", is harmless under these circumstances.
Rather, it results from the redesign of the page 2016 another indication of this, that, according to the understanding of all those involved, it was the side of the association. The defendant explains this itself, she admitted the deputy chairman Y ... “as an assistant” in the administration of the site, which is now also posted there, the club (without her knowledge) as the person responsible in the imprint and the page (what she accepted) renamed to "...". First of all, the position corresponds, which Mr. Y ... took over, not that of an "auxiliary person". Elsewhere, the defendant speaks more accurately of that of a "co-administrator". But above all it would be, if, according to the defendant's understanding, it had been their own private Facebook page, not to be expected, that the defendant grants these powers to a third party and simply accepts their interference in the design.
(6) The Facebook page "...", even if they too - from the year 2018 - was operated by the association, does not change anything in the qualification of the disputed side. At least that's not how it is, that this new Facebook page would have replaced the old Facebook page and that the association would now only have posted its own posts on the new page. Since that was not the case, the conclusion cannot be drawn, In the opinion of those responsible for the plaintiff, there would have been no side of the association and this was only created with the new side.
cc) There are no data protection concerns. It is already not apparent, which personal data of third parties could become known to the person responsible of the plaintiff with the transfer of administration rights. As far as that would be the case, their protection would apply in the context of the balancing according to § 24 Abs. 1 No.. 2 BDSG behind the right to information of the claimant of the surrender claim (vgl. MüKoBGB / Schäfer, 8. ed. 2020, § 666 Rn. 17; BGH, NJW 2012, 58).
The reference to the ECJ decision on the responsibility of the operator of a Facebook page for the processing of personal data (EuZW 2018, 534) does not warrant any other rating. Because it is about the cookies set by Facebook on the end devices of visitors to a page and the possibility of the page operator, receive anonymized statistical data relating to the users of these Facebook pages. This can result in an obligation to instruct the site operator. This obligation does not preclude a change of operator.
dd) The claim was not time barred. The limitation period for the surrender claim begins to run when it becomes due. This is to be dated here on the departure from the board (vgl. MüKoBGB / Schäfer, 8. ed. 2020, § 667 Rn. 23 on contract law).
c) In the deletion of the Facebook page after filing a lawsuit, which led to it, that the page is irretrievably lost, After all, lies the final event, which made the lawsuit unfounded. Because now the surrender is impossible and therefore not owed by the defendant (§ 275 BGB).
III.
The costs are based on §§ 97, 91 Abs. 1 S. 1 ZPO., die Entscheidung über die vorläufige Vollstreckbarkeit auf §§ 708 No.. 10, 713 Code of Civil Procedure.
The revision was not in accordance with § 543 To allow ZPO, since the case has no fundamental significance and the further training of the law or the safeguarding of uniform case law does not require a decision by the appeal court.