b) The use of the image of a prominent person on the Internet as a “Clickbait” (“Click queues”) without editorial reference to this intervenes in the property-law allocation content of your right to your own image.

c) A celebrity doesn't have to accept, that your portrait is used by the press free of charge to advertise editorial contributions, that do not concern them.

Urteil BGH I ZR 120/19 – Clickbaiting

KUG § 22 Set 1, § 23 Abs. 1 No.. 1, Abs. 2; BGB § 812 Abs. 1 Set 1 Fall 2, § 818 Abs. 2; ZPO § 538 Abs. 2 Set 1 No.. 4

a) The court of appeal is also authorized to review a first-instance basic judgment, to decide on the amount of the claim, if it does not object to the basic judgment and the dispute over the amount is ripe for a decision. This does not require a cross-appeal by the plaintiff, the consent of the parties, or a repetition of the plaintiff's first instance request.

b) The use of the image of a prominent person on the Internet as a “Clickbait” (“Click queues”) without editorial reference to this intervenes in the property-law allocation content of your right to your own image.

c) A celebrity doesn't have to accept, that your portrait is used by the press free of charge to advertise editorial contributions, that do not concern them.

BGH, Judgment of 21. January 2021 – I ZR 120/19 – OLG Köln
LG Köln
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There I. Civil Division of the Federal Court from the hearing 24. September 2020 by the presiding judge Prof. Dr. Koch, the judge Prof. Dr. Schaffert and Dr. Loeffler, Judge Dr. Schwonke and the judge Odörfer
hereby:
The appeal from the judgment of the 15. Civil Senate of the Cologne Higher Regional Court from 28. More 2019 will be rejected at the expense of the defendant.
Of right
Facts:
The applicant, Günther Jauch, is a well-known and loved television presenter in Germany. He has stated publicly, to be no longer available for advertising to third parties.
The defendant offers the program guide “TV Movie” and maintains a Facebook profile in addition to the website www.tvmovie.de. On this she posted on 18. August 2015 following text:
+++ JUST REPORTED +++ One of these TV presenters has to retire because of CANCER DISEASE. We wish, that he'll be fine soon
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The message contained a – used without consent – Photo of the plaintiff and photos of the three other prominent television presenters Roger Wil-lemsen, Stefan Raab and Joko Winterscheidt. It was designed as shown below:
By clicking on the message, the readers were forwarded to the defendant's website at www.tvmovie.de/news, where truthfully reported about Roger Willemsen's illness. There was no information about the plaintiff there.
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The defendant submitted the declaration of cease and desist requested by the plaintiff. She also apologized publicly for the Facebook post, for which she had been heavily criticized in public. She informed the plaintiff, that they are only on the picture 18. August 2015 for a maximum of two to three hours alone on their Facebook page. The number of clicks on the article was approx. 6.650 located.
The plaintiff is the only one who is still relevant for the appeal proceedings 1 desired,
order the defendant, a reasonable fictitious license fee to him, the amount of which is left to the discretion of the court, but at least 20.000 €, plus interest of five percentage points above the respective base rate since pending.
The district court has decided, that this claim is justified on the merits (LG Köln, TO THE 2018, 889). The appeals court rejected the defendant's appeal and sentenced them, to the plaintiff 20.000 € plus interest to be paid (OLG Köln, GRUR-RR 2019, 396).
With the revision approved by the court of appeal, whose rejection is requested by the plaintiff, the defendant is pursuing its motion to dismiss the application 1 continue.
Reasons:
A. The court accepted, the basic judgment of the regional court was admissible, however, do not prevent the appellate court from making its own decision on the matter, including the amount. The plaintiff is entitled to § 812 Abs. 1 Set 1 Fall 2 BGB as well as from § 823 Abs. 1 BGB in connection with Art. 1 Abs. 1, Art. 2 Abs. 1 GG or. out § 823 Abs. 2 BGB in connection with §§ 22, 23 KUG too. The unauthorized commercial use of the image of a
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Person represents an encroachment on the property-related allocation of the right to one's own image as well as the general right of personality and can in principle justify a claim from encroachment conditions to payment of the usual license fee for use. The use of the plaintiff's portrait is measured by §§ 22, 23 KUG been illegal. Given the necessary weighing of the conflicting interests within the framework of § 23 Abs. 1 No.. 1 KUG outweigh the personal rights concerns of the plaintiff. The publication of the portrait was not associated with any noteworthy informational value with regard to the plaintiff, because the editorial coverage in the target article had no reference to it. The use of portraits as “Click queues” (“Clickbaiting”) should be treated as commercial / promotional. The claim was also justified in terms of amount. When determining an appropriate license fee, the way to estimate is in principle according to § 287 ZPO eröffnet, which was possible without expert help.
B. The defendant's appeal against this assessment is unfounded. The fact, that the district court had only issued a basic judgment, did not stand in the way of a decision by the appellate court regarding the amount either (dazu B I). The court of appeal affirmed the asserted claim for enrichment, both in terms of reason and amount, free of legal errors (dazu B II). The question does not require any decision, whether the plaintiff is also entitled to a claim for damages (dazu B III).
I. The court of appeal was empowered, also to decide on the amount of the claim, although the regional court had only issued a basic judgment on this. A cross-appeal by the plaintiff, The parties did not need to approve or repeat the first-instance request for a substance by the plaintiff.
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1. The court accepted, that the basic judgment of the regional court was admissible, However, the court of appeal does not prevent its own decision on the matter, including the amount. It is doubted, whether such an approach is possible. According to the prevailing opinion, an appellate court could finally decide the legal dispute for reasons of process economy overall, if, in the case of a procedurally admissible basic judgment, it also considers the amount to be ready for a decision, without the need for a formal cross appeal by the successful plaintiff. It cannot be seen, that the decision-making authority of the appellate court is also to be made formally dependent on the consent of all parties. For the decision of the court of appeal is also irrelevant, that the plaintiff had not expressly repeated his material applications from the first instance before the appeals court as such. This assessment stands up to legal scrutiny.
2. Contrary to the opinion of the appeal, the appellate court was authorized, a decision on the amount of the claim 1 hold true. This does not follow directly from § 538 Abs. 2 Set 1 No.. 4 Code of Civil Procedure. However, this provision presupposes such a decision-making authority of the court of appeal.
a) The provision of § 538 Abs. 1 ZPO determined as a principle, that the appeals court itself has to collect the necessary evidence and decide the matter. In § 538 Abs. 2 ZPO are exceptions to this principle. If the court of first instance has decided in advance about the reason for the claim or has dismissed the claim in the case of a claim that is disputed in terms of reason and amount, the court of appeal may take the matter, insofar as their further negotiation is necessary, in accordance with § 538 Abs. 2 Set 1 No.. 4 Half sentence 1 ZPO with annulment of the judgment and the procedure
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refer back to the court of first instance. As a counter exception, § 538 Abs. 2 Set 1 No.. 4 Half sentence 2 ZPO allerdings, that this does not apply, when the dispute about the amount of the claim is ripe for a decision. In this case, the principle of § 538 Abs. 1 ZPO applies, according to which the appellate court itself has to decide on the matter.
b) The provision of § 538 Abs. 2 Set 1 No.. 4 However, ZPO is not directly applicable in the event of a dispute. All in § 538 Abs. 2 ZPO enumerated cases is common according to the wording of this provision, that the appellate court cancels the judgment and the proceedings of the court of first instance and refers the matter back to it. The determination of the § 538 Abs. 2 Set 1 No.. 4 ZPO is therefore directly applicable only to a basic judgment of the first court that is incorrect from the point of view of the appellate court. If the appeals court objects to the basic judgment – as in the case of dispute – Not, there is no annulment and remittal within the meaning of § 538 Abs. 2 ZPO vor; rather, in principle, the court of first instance has to carry out the pending amount proceedings ex officio (vgl. RG, Judgment of 19. October 1908 – VII 169/07, RGZ 70, 179, 183; BGH, Judgment of 3. March 1958 – III ZR 157/56, References omitted 27, 15, 26 f.; Decision of 29. April 2004 – In ZB 46/03, , A-RR 2004, 1294, 1295 [juris Rn. 9]; OLG, , A-RR 1999, 368 [juris Rn. 7]; OLG Stuttgart, OLGR Stuttgart 2004, 26, 27 [juris Rn. 24]; OLG Naumburg, BeckRS 2016, 132117 Rn. 74; Gerken in Wieczorek / Schütze, Code of Civil Procedure, 4. Ed, § 538 Rn. 49; Geigel / Bacher, Liability litigation, 28. Ed, Gets. 38 Rn. 87; aA in the sense of an applicability of the regulation also with confirmation of the basic judgment Zöller / Hess-ler, Code of Civil Procedure, 33. Ed, § 538 Rn. 43; MünchKomm.ZPO / Rimmelspacher, 5. Ed, § 538 Rn. 62; Reichold in Thomas/Putzo, Code of Civil Procedure, 41. Ed, § 538 Rn. 18; Carpenter, Code of Civil Procedure, 10. Ed, § 538 Rn. 8; Costume in Kern / Diehm, Code of Civil Procedure, 2. Ed, § 538 Rn. 17; Oberheim in Prütting/Gehrlein, Code of Civil Procedure, 12. Ed, § 538 Rn. 29; lesson. in Hirtz/Oberheim/Siebert, Appeal in civil proceedings, 6. Ed, Gets. 18 Rn. 72). Dies
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also follows from this, that the litigation is not in its full scope, but only because of the intervening dispute over the reason for the claim reached the appeal instance. Otherwise he remains pending before the court of first instance, so that this according to § 304 Abs. 2 Half sentence 2 ZPO can continue to negotiate in the matter during the appeal proceedings (vgl. References omitted 27, 15, 26 f.; BGH, , A-RR 2004, 1294, 1295 [juris Rn. 9]). If the appellate court still issues a remittal in the case of a confirmation of a first-instance basic judgment, this is therefore only for clarification purposes (vgl. Gerken in Wieczorek / Schütze aaO § 538 Rn. 49; Old hammer in stone / Jonas, Code of Civil Procedure, 23. Ed, § 538 Rn. 37; Geigel / Bacher loc. Cit., Chap. 38 Rn. 87).
c) The one in § 538 Abs. 2 Set 1 No.. 4 Half sentence 2 However, the general principle can be found in the ZPO-regulated counter-exception, that the court of appeal is empowered to review a basic judgment of the first instance, also decide on the amount, if the dispute is ripe for a decision. The rule mentioned is – rightly – “for an anomaly, for system contrary, but functional” been held (to the same § 538 Abs. 1 No.. 3 Half sentence 2 ZPO aF vgl. RG, Judgment of 14. March 1921 – IX 521/30, RGZ 132, 103, 104). It serves to accelerate the process and to avoid unproductive judicial work (vgl. RGZ 132, 103, 104). There is no less need for an error-free basic judgment than with an incorrect one. Also the consequence, that the parties are deprived of an instance by the first decision of the court of appeal on the amount, occurs equally in both constellations. Es ist nicht ersichtlich, which is why the appellate court should not be able to make a decision on the amount when confirming an error-free first-instance basic judgment, if it has to decide on this in the event of the annulment of an erroneous first-instance basic judgment when it is ready for a decision and a remittal is excluded.
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This matches with – As far as apparent – the unanimous view in jurisprudence (vgl. RG, Judgment of 24. April 1926 I 340/25, RGZ 113, 261, 264; RGZ 132, 103 f.; BGH, Judgment of 7. June 1983 – VI ZR 171/81, VersR 1983, 735, 736 [juris Rn. 9]; Judgment of 30. October 1984 – VI ZR 18/83, NJW 1986, 182 [juris Rn. 11]; BGH, , A-RR 2004, 1294, 1295 [juris Rn. 16]; Higher Regional Court Koblenz, MDR 1992, 805 [juris Rn. 31 to 33]; OLG, , A-RR 1999, 368 [juris Rn. 8]; OLG Dusseldorf, NJOZ 2002, 2335 [juris Rn. 48]; Karlsruhe Higher Regional Court, Judgment of 16. More 2017 – 17 You 81/16, juris Rn. 34 f.) and the vast majority of opinion in the literature (vgl. Zöller / Heßler loc. 538 Rn. 43 and 46; MünchKomm.ZPO / Rimmelspacher aaO § 538 Rn. 66; Althammer in Stein / Jonas aaO § 538 Rn. 38; Rensen in Wieczorek / Schütze loc. Cit. 304 Rn. 78; Gerken in Wieczorek / Schütze aaO § 528 Rn. 49 and § 538 Rn. 58; Reichold in Thomas/Putzo aaO § 538 Rn. 21; Hunke in Baumbach / Lauterbach / Hartmann / Anders / Gehle, Code of Civil Procedure, 78. Ed, § 304 Rn. 27; Thole in Prütting/Gehrlein aaO § 304 Rn. 23; Oberheim in Eichele/Hirtz/Oberheim aaO Kap. 18 Rn. 74; Rosenberg / Schwab / Gottwald, Civil litigation law, 18. Ed, § 140 Rn. 36; Geigel / Bacher loc. Cit., Chap. 38 Rn. 87; Mattern, SW 1960, 385, 389; aA Bettermann, ZZP 88 [1975], 365, 394 f.). Contrary to the opinion of the appellate court, the higher regional court Stuttgart (OLGR Stuttgart 2004, 26, 27 [juris Rn. 24]) do not have a different opinion on this question. It just ran, that in the case of a confirmation of a basic judgment there is no remittal according to § 538 Abs. 2 ZPO need, because the amount proceedings are still pending in the first instance.
3. The admissibility of a decision by the appellate court on the amount was not dependent on a cross-appeal by the plaintiff, Consent of the parties or repetition of the relevant application of the plaintiff in the appellate body dependent.
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a) There is no need for the plaintiff to appeal against the basic judgment, in order to enable the appellate court to make a decision about the amount of the claim (vgl. RGZ 132, 103, 105; Karlsruhe Higher Regional Court, Judgment of 16. More 2017 – 17 You 81/16, juris Rn. 34; Gerken in Wieczorek / Schütze aaO § 538 Rn. 58; MünchKomm.ZPO / Rimmelspacher aaO § 538 Rn. 66; Althammer in Stein / Jonas aaO § 538 Rn. 38; Oberheim in Eichele/Hirtz/Oberheim aaO Kap. 18 Rn. 74). A preliminary ruling is made on the reason for the claim, a cross-appeal by the plaintiff is out of the question anyway, except in the case of an extension of the complaint (vgl. RGZ 132, 103, 105). That already follows from it, that the cross appeal can only be directed against the judgment challenged by the main legal remedy (vgl. BGH, Judgment of 9. February 1983 IVb ZR 361/81, NJW 1983, 1317, 1318 [juris Rn. 9]; MünchKomm.ZPO / Rim-melspacher aaO § 524 Rn. 11; Althammer in Stein / Jonas aaO § 524 Rn. 12; Wulf in BeckOK.ZPO, 37. Edition [Stand 1. July 2020], § 524 Rn. 6), but not against the amount proceedings pending before the court of first instance.
b) A decision by the court of appeal on the amount of the claim does not require the consent of the parties.
aa) If the basic judgment is incorrect, § 538 Abs. 2 Set 1 No.. 4 ZPO does not require any application or consent from the parties, so that the court can decide on the amount (vgl. BGH, Judgment of 28. June 2016 – VI ZR 559/14, NJW 2016, 3244 Rn. 37; Higher Regional Court Koblenz, MDR 1992, 805 [juris Rn. 33]; Zöller / Feskorn aaO § 304 Rn. 37; Saenger/Saenger, Code of Civil Procedure, 8. Ed, § 304 Rn. 16). The request of a party is required according to § 538 Abs. 2 Set 1 aE ZPO rather alone, to allow the court to remit (vgl. BGH, Judgment of 22. June 2004 – XI ZR 90/03, , A-RR 2004, 1637, 1639 [juris Rn. 28]). Even then, a remittal is not available – as stated – according to § 538 Abs. 2 Set 1 No.. 4 Half sentence 2 ZPO aus, when the dispute over the amount is ripe for a decision.
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bb) This cannot be demanded even if the basic judgment is correct, that the parties have agreed to the settlement of the amount process (aA Ball in Musielak / Voit, Code of Civil Procedure, 17. Ed, § 538 Rn. 29; Cassardt in Cepl / Voss, Practical comment on commercial legal protection, 2. Ed, § 528 ZPO Rn. 16 and § 538 ZPO Rn. 28; Mattern, SW 1960, 385, 389). According to the case law of the Federal Court of Justice, the court of appeal can at least then take on a matter of the amount procedure, if the parties have made the complex excluded by the first court the subject of the appeal proceedings and the decision on this is relevant (BGH, VersR 1983, 735, 736 [juris Rn. 9]; BGH, Judgment of 5. March 1993 – The ZR 87/91, NJW 1993, 1793, 1794 [juris Rn. 5]; also OLG Düsseldorf, BauR 2002, 652, 657 [juris Rn. 82]; OLG, Decision of 2. September 2014 – 27 You 2924/14, juris Rn. 14; MünchKomm.ZPO / Musielak aaO § 304 Rn. 13; lesson. in Musielak / You aaO § 304 Rn. 14; Göertz in Baumbach / Lauterbach / Hartmann / Anders / Gehle aaO § 528 Rn. 6 “Basic part”). That was the case here. The parties have after the notice of the court of appeal, it also considers the matter to be ripe for a decision on the amount and will therefore make the amount procedure the subject of the appellate body, also presented on the level of entitlement.
c) The appeals court also rightly accepted, that, with regard to the amount procedure, no repetition of the substantive applications before the court of appeal was required (aA Ball in Musielak / Voit aaO 538 Rn. 29; Cassardt in Cepl / Voß, loc. Cit. § 528 ZPO Rn. 16 and § 538 ZPO Rn. 28). When the appeals court takes over the amount proceedings, this reaches the court of appeal in this state, in which it was found at the court of first instance. In the event of a dispute, the relevant material requests had already been made before the regional court and were still valid in the proceedings before the court of appeal.
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II. The plaintiff has a claim against the defendant in accordance with § 812 Abs. 1 Set 1 Fall 2, § 818 Abs. 2 BGB to the payment of a fictitious license fee for the use of his portrait. The defendant intervened in the property-law assignment of the right to the plaintiff's own image (dazu B II 1). This intervention was not in accordance with §§ 22, 23 KUG justified and therefore took place without any legal reason (dazu B II 2). The notional license fee, which is to be paid by the defendant as compensation for the enrichment that has occurred, the court of appeal has with no legal error 20.000 € measured (dazu B II 3).
1. The Court of Appeal adopted applicable, that the defendant has intervened in the property-related allocation of the right to the plaintiff's own image.
a) The decision, whether and in what way your own portrait should be made available for advertising purposes, is more essential – property law – Part of the right of personality (BGH, Judgment of 31. More 2012 – I ZR 234/10, Wheat 2013, 196 Rn. 15 = WRP 2013, 184 – Playboy on Sunday, mwN). The unauthorized commercial use of a picture for advertising purposes therefore constitutes an interference with the property-related content of the right to one's own picture and basically justifies it – in addition to the fault-based claim for damages – a claim from the condition of intervention for payment of the usual license fee (vgl. BGH, Wheat 2013, 196 Rn. 42 – Playboy on Sunday, mwN).
However, there is no interference with the property-related content of the right to one's own image, if the press reports events of interest to the public and is not apparent, that commercial interests of a person hitherto unknown to the public, which is the subject of the report, could exist. In such cases, the press is not concerned, the commercial exploitation power of the person, which is reported on, to presume. Rather, the reporting interest is in
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foreground. The possibly existing intention, by designing the message with a picture of the person concerned to achieve additional profit by increasing the circulation, is just a contributing element. The publication of the picture does not constitute in such cases “commercial exploitation” in the sense of utilizing the opportunities for exploitation of the image (vgl. BGH, Judgment of 20. March 2012 – VI ZR 123/11, NJW 2012, 1728 Rn. 28; Wenzel / Burkhardt, The right of the word- and picture reporting, 6. Ed, Gets. 14 Rn. 7; Soehring/Hoene in Soehring/Hoene, Press Law, 6. Ed, Rn. 32.23; Fricke in Wandtke / Bullinger, Copyright, 5. Ed, § 22 KUG Rn. 26).
The question, whether a portrait for advertising, so commercial, has been used, judges itself from the point of view of the average reader (vgl. BGH, Judgment of 14. March 1995 – VI ZR 52/94, WRP 1995, 613 [juris Rn. 12]). An encroachment on the property-related content of the right to one's own image is then particularly into consideration, if the use of the likeness is advertising- and the image value of what is depicted, in that the person depicted is marketed, for example, as the opening credits for the promotion of a press product (vgl. BGH, Wheat 2013, 196 Rn. 17 – Playboy on Sunday). However, it is also sufficient, however, leads to a lower weight of the intervention, if it is a mere attention grabber, so only the attention of the viewer should be drawn to the advertised product (vgl. BGH, Judgment of 29. October 2009 – I ZR 65/07, Wheat 2010, 546 Rn. 19 f. = WRP 2010, 780 – The stumbling darling, mwN).
The principles developed for assessing the use of images in advertisements apply equally to editorial photo reporting, the (also) serves for self-promotion (vgl. BGH, Wheat 2013, 196 Rn. 17 – Playboy on Sunday). For example, the use of a portrait of a prominent person on the title page of a magazine, due to the advertising function of the title page, affects the property allocation content
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of the right on your own picture. This is true even then, if the picture is linked to a report on the person depicted (vgl. BGH, Judgment of 11. March 2009 – I ZR 8/07, Wheat 2009, 1085 Rn. 28 = WRP 2009, 1269 – Who will be a millionaire?; Judgment of 18. November 2010 – I ZR 119/08, Wheat 2011, 647 Rn. 36 = WRP 2011, 921 – market & People).
b) The court accepted, the (atypical) Use of portrait as “Click queues” should be treated as commercial / promotional. The present case is not just about editorial reporting on the plaintiff, Instead, it is a conscious exploitation of the plaintiff's degree of popularity and thus also the market value of the plaintiff's portrait for commercial measures in the form of generating clicks for the defendant in addition to editorial reporting by the defendant that does not affect the plaintiff at all, solely on the moderator who is actually ill. For the question, whether a picture was used for advertising, the point of view of the average reader is decisive. In so far it is irrelevant, that the plaintiff's image is not in the form of classic advertising, but only in an editorial way “Teaser” had been used, on editorial reporting – but only through a third party – had been linked. Because the principles developed for the assessment of the use of images in the context of advertisements also apply in principle to self-promotion by the press. Commercial use that is subject to compensation could then also exist, when – like here – only the attention of the reader is directed to a press product, especially since in this case at the same time direct additional advertising revenue was achieved and the use of such “Click queues” ultimately only represent a special form of marketing. A right to license analogy in advertising does not necessarily presuppose, that the use of the image has a generally promotional character for the press product as such, so that the arbitrary linking of the disputed publication with the announcement of a concrete one does not
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editorial contribution about a third party omitted the claim of the plaintiff. Such announcements in the online area are, like title page announcements in the print area, ultimately of a kind “Figurehead” of the overall appearance or. of the entire publication and animated the audience like one “Advertising space” to purchase the magazine or to visit the website.
c) Diese Beurteilung hält den Angriffen der Revision stand.
aa) The revision does not deny, that the defendant wanted to attract attention for the linked target article with the Facebook posting, but only asserts, that this circumstance does not change anything in the character of the posting as an editorial announcement of a specific article. She does not get through with that. The appellate court has taken into account, that an editorial report was available, which the defendant advertised with the Facebook posting typical of the press. However, it rightly aimed at it, that the plaintiff himself was not affected by the editorial coverage in the linked article, and from this correctly concluded that his image was used solely for the purpose of attracting attention. Such a portrait use as “Clickbait” (“Click queues”) without editorial reference to the plaintiff intervenes in the property-related allocation of his right to his own image.
bb) Contrary to the opinion of the revision, it is not decisive, whether the defendant in the Facebook posting with the plaintiff's picture her company, advertised the press product as a whole or just a single article from it. Even with the promotion of an individual article, the sale of the press product or. calling up the associated website should be promoted. The revision also allows this for the announcement of an article on the title page, since she accepts, that the advertising income in the online area corresponds to the sales price and the advertising income for a print medium and a title page announcement for a magazine corresponds to that
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to encourage potential readers to do so, to buy the entire magazine and also to perceive the advertisements it contains while reading it. However, nothing else applies to a Facebook posting, which takes on the function of announcing an article on the title page and is intended to encourage the reader to do so, to call up the website of the press organ, on which the corresponding article is located.
2. The interference with the right to the plaintiff's own image is measured by the §§ 22, 23 KUG illegal.
a) The court of appeal has the lawfulness of the action of the defendant according to the graduated protection concept of §§ 22, 23 KUG judged.
aa) According to this, portraits of a person may only be distributed with the consent of the person depicted (§ 22 Set 1 KUG). There is no such consent, the distribution of an image is only permitted, when it comes to contemporary history (§ 23 Abs. 1 No.. 1 KUG) or one of the other exceptions of § 23 Abs. 1 KUG can be positively assigned and the legitimate interests of the person depicted are not violated (§ 23 Abs. 2 KUG).
(1) Relevant to the question, whether it is a portrait from the field of contemporary history, is the concept of current affairs. This must not be understood too narrowly. It is not limited to events of historical or political importance, but is to be determined by the public's interest in information. With this in mind, it encompasses the events of time in general, thus all questions of general social interest (vgl. BGH, Wheat 2013, 196 Rn. 22 – Playboy on Sunday; BGH, Judgment of 7. July 2020 – VI ZR 250/19, TO-RD 2020, 642 Rn. 12; Judgment of 29. Seven Līber 2020 – VI ZR 445/19, TO-RD 2020, 637 Rn. 21, each with further references). It is at the core of freedom of the press, that the press has sufficient leeway within the legal limits, in which she after her journalistic
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Criteria can decide, what claims the public interest (BGH, ZUMRD 2020, 642 Rn. 13; TO-RD 2020, 637 Rn. 21, each with further references). Also entertaining contributions, about the private- and everyday life of prominent people, basically participate in this protection, without this depending on the nature or level of the respective contribution or the press product (vgl. BGH, TO-RD 2020, 642 Rn. 13).
On § 23 Abs. 1 No.. 1 However, KUG cannot appeal, who does not meet the general public's interest in information worthy of protection, but wants to satisfy his business interests solely by using someone else's portrait for advertising purposes (BGH, Judgment of 26. October 2006 – I ZR 182/04, References omitted 169, 340 Rn. 15 – Resignation of the finance minister; BGH, Wheat 2013, 196 Rn. 22 – Playboy on Sunday, each with further references). Dabei ist jedoch zu beachten, that also your own advertising for a press product – as well as the press product itself – the protection of the freedom of the press according to Art. 5 Abs. 1 Set 2 GG enjoys (vgl. BGH, Judgment of 14. More 2002 – VI ZR 220/01, References omitted 151, 26, 30 f. [juris Rn. 13]; BGH, Wheat 2013, 196 Rn. 27 – Playboy on Sunday, mwN), because it promotes sales of the press product and in this way contributes to the dissemination of information (vgl. References omitted 151, 26, 30 f. [juris Rn. 13]).
(2) If the scope of § 23 Abs. 1 No.. 1 KUG is open, requires assessment, whether a portrait can be assigned to the field of contemporary history, one – fully revisable under revision law – Weighing between the plaintiff's interest in protecting his personality and the public's interest in information perceived by the defendant (vgl. BGH, Wheat 2009, 1085 Rn. 15 – Who will be a millionaire?; Wheat 2010, 546 Rn. 16 – The smacking darling; Wheat 2011, 647 Rn. 29 – market & People; Wheat 2013, 196 Rn. 23 – Playboy on Sunday; TO-RD 2020, 637 Rn. 21, each with further references). The test is based on a normative standard, of the conflicting
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Takes sufficient account of interests (vgl. BGH, Wheat 2009, 1085 Rn. 15 – Who will be a millionaire?).
When weighting the general public's interest in information, the informational value of the image and the accompanying reporting are of decisive importance (BGH, Wheat 2009, 1085 Rn. 17 – Who will be a millionaire?). Such a weighting is not due to freedom of the press (Art. 5 Abs. 1 Set 2 GG) out, because the right of the press, to decide for themselves on the subject and content of their reporting according to journalistic criteria, not exempt from weighing up with the protected legal positions of those, which is reported on (vgl. BGH, Wheat 2009, 1085 Rn. 19 – Who will be a millionaire?). In principle, the press is free to do so, Illustrate text reports with pictures, without a needs test taking place, whether the illustration was initiated (vgl. BGH, Judgment of 9. April 2019 – VI ZR 533/16, Wheat 2019, 866 Rn. 10; BGH, TO-RD 2020, 637 Rn. 21, each with further references). Does the press product contain a photo report about a prominent person that is subject to the protection of press freedom, may also be advertised with their portrait on the title page. But reporting is only exhausted there, to create an occasion for the depiction of a celebrity, because no contribution to the formation of public opinion is recognizable, The personality rights of the person depicted do not only limit the reporting, but also advertising for the press product (BGH, Wheat 2009, 1085 Rn. 28 – Who will be a millionaire?; Wheat 2013, 196 Rn. 39 – Playboy on Sunday, each with further references).
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When weighting the personality rights of the person depicted, the intensity of the intervention in question must be taken into account, which can also refer to an unwanted collection for third-party commercial advertising interests (vgl. BGH, Wheat 2009, 1085 Rn. 25 – Who will be a millionaire?, mwN). An intervention is particularly important, when the advertisement gives the impression, the person depicted identifies with the advertised product, recommend or advertise it (BGH, Wheat 2010, 546 Rn. 19 – The stumbling darling; Wheat 2013, 196 Rn. 25 – Playboy on Sunday). However, even then, an intervention is of considerable importance, when – without an express recommendation for the product from the image reporting – The direct juxtaposition of the goods and what is depicted in the advertising transfers the public's interest in the person and their popularity to the goods, because the viewer of the advertisement creates a mental connection between what is depicted and the product being advertised, which leads to an image transfer (BGH, Wheat 2009, 1085 Rn. 29 ff. – Who will be a millionaire?, mwN; Wheat 2010, 546 Rn. 19 – The stumbling darling; Wheat 2011, 647 Rn. 31 – market & People; Wheat 2013, 196 Rn. 25 – Playboy on Sunday). In contrast, the intervention has less weight, if the depiction of a prominent person in advertising neither has the character of a recommendation nor leads to an image transfer, but only draws the viewer's attention to the advertised product (BGH, Wheat 2010, 546 Rn. 19 – The stumbling darling; Wheat 2011, 647 Rn. 31 – market & People; Wheat 2013, 196 Rn. 25 – Playboy on Sunday, mwN). The principles developed for assessing the use of images in advertisements apply equally to editorial image reporting, the (also) serves for self-promotion (vgl. BGH, Wheat 2013, 196 Rn. 17 – Playboy on Sunday).
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It is also important for the weighing up, whether the encroachment on the right of personality only affects its property allocation content, which is merely protected by simple law, or whether it also affects its ideal component, which is also constitutionally guaranteed. The property-law components of personality rights, which are only protected by simple law, do not take precedence over the constitutionally protected freedom of the press (vgl. BGH, Wheat 2011, 647 Rn. 34 and 40 – market & People).
bb) The tiered protection concept of §§ 22, 23 KUG complies with both constitutional requirements and the case law of the European Court of Human Rights (vgl. BGH, Wheat 2013, 196 Rn. 13 – Playboy on Sunday; TO-RD 2020, 637 Rn. 15, each with further references).
cc) It is also compatible with Directive 95/46 / EC on the protection of natural persons when processing personal data and on the free movement of data, at the time of the disputed act on 18. August 2015 was still in force.
(1) The scope of Directive 95/46 / EC is now open, because the use of the photo showing the plaintiff in the disputed Facebook posting by the defendant results in automated processing of the plaintiff's personal data in accordance with Art. 3 Abs. 1 of Directive 95/46 / EC (vgl. ECJ, Judgment of 14. February 2019 – C-345/17, Wheat 2019, 760 Rn. 29 to 39 – Buivids). According to their kind. 3 Abs. 1 Directive 95/46 / EC applies to the fully or partially automated processing of personal data as well as to the non-automated processing of personal data, which are or are to be saved in a file. According to Art. 2 BUCHST. a of Directive 95/46 / EC all information about an identified or identifiable natural person; a person is seen as determinable, which can be identified directly or indirectly. The image of a person recorded by a camera falls under this term (vgl. ECJ,
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Wheat 2019, 760 Rn. 31 – Buivids, mwN). The processing of personal data within the meaning of Art. 2 BUCHST. b of Directive 95/46 / EC includes every process or series of processes carried out with or without the help of automated processes in connection with personal data; this also includes saving, passing on by transmission, Distribution or any other form of delivery. According to the case law of the Court of Justice of the European Union, the process is, consisting in, to put personal data on a website, to be regarded as such processing (vgl. ECJ, Wheat 2019, 760 Rn. 37 – Buivids, mwN).
(2) Gemäß Art. 7 BUCHST. f of Directive 95/46 / EC, the processing of personal data is permitted under three cumulative conditions, namely (1) a legitimate interest, das von dem für die Verarbeitung Ver-antwortlichen oder von dem bzw. den Dritten wahrgenommen wird, the or. denen die Daten übermittelt werden, (2) the necessity of processing the personal data for the realization of the legitimate interest and (3) a lack of predominance of the fundamental rights and freedoms of the data subject (vgl. ECJ, Judgment of 29. July 2019 – C40 / 17, Wheat 2019, 977 Rn. 95 = WRP 2019, 1146 – Fashion ID). This regulation is inter alia through the §§ 22, 23 KUG implemented into German law, which comply with the provisions of the Federal Data Protection Act according to § 1 Abs. 3 Set 1 BDSG old version act as a more specific law with regard to public dissemination (vgl. stick 150, 195 Rn. 14 to 16). The after § 23 Abs. 1 No.. 1, Abs. 2 KUG balancing of interests to be carried out meets the requirements of Art. 7 BUCHST. f of Directive 95/46 / EC. No different from the balancing according to Art. 7 BUCHST. f of Directive 95/46 / EC are within the framework of § 23 Abs. 1 No.. 1, Abs. 2 KUG on the part of the data processor to take into account, in particular, freedom of expression and the public's interest in information (vgl. BVerfGE 152, 216 Rn. 95 and 102 – Right to be forgotten II; to § 29 Abs. 1 Set 1 No.. 1 and 2 BDSG aF, which also complies with the implementation of Art. 7 BUCHST. f
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the directive 95/46 / EG serves, vgl. BGH, Judgment of 23. June 2009 – VI ZR 196/08, References omitted 181, 328 Rn. 27; Judgment of 27. February 2018 – VI ZR 489/16, References omitted 217, 350 Rn. 51).
(3) The question, whether in the event of a dispute a processing of personal data “for journalistic purposes only” within the meaning of Art. 9 Directive 95/46 / EC is available, does not require a decision. According to this regulation, the member states take care of the processing of personal data, the journalistic alone, artistic or literary purposes, Deviations from and exceptions to Chapter III, IV and VI of Directive 95/46 / EC only insofar, when this proves necessary, to reconcile the right to privacy with the rules governing freedom of expression. However, the Art Copyright Act does not contain a separate regulation for the public distribution of images for journalistic purposes, so that also in these cases the §§ 22, 23 KUG are to be applied.
b) The court of appeal has the use of the plaintiff's portrait in the specific context measured against the graduated protection concept of §§ 22, 23 KUG considered inadmissible. There is no portrait from the area of ​​contemporary history in the sense of § 23 Abs. 1 No.. 1 KUG before. When weighing up the conflicting interests, the personal rights of the plaintiff prevail. It is true that this person may be a prominent person and that it is not a disadvantageous photo only from the area of ​​his professional activity and thus his social sphere. However, the defendant's legitimate concerns are not, at least not with weight, to be included in the weighing. The publication of the portrait itself was not associated with any noteworthy informational value with a view to the plaintiff, especially since its face was already known to the public as well as the message that could be derived from the posting alone, that he was also a TV presenter. A tangible contribution to the formation of public opinion was obviously not associated with this, especially
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Unfounded speculations about a possible cancer related to the plaintiff on the verge of a deliberate false report and thus at best on the outermost edge of the scope of protection of Art. 5 Abs. 1 GG would be.
The defendant could not rely on it either, that the posting was linked to a report on the other moderator who was sick. The jurisprudence presupposes an editorial report on the specifically affected person in the inside part or at least a relevant factual statement in the form of a picture or a caption on the title page. That is what is lacking with regard to the plaintiff. It could not be argued in the sense of the defendant, the editorial reporting in the target article contains in any case “between the lines” at the same time the (negative) editorial coverage of the plaintiff, that at least this one (just like the other two moderators shown) is not also suffering from cancer and that is why he is not retiring from professional life. As far as the defendant also argues, that the Facebook posting is definitely an editorial one “Picture puzzle” also with reference to the plaintiff, this could not justify the publication of his portrait either, since such an interpretation is remote. The reader is not stopped, by means of “Reflection” the text message above the pictures of the four celebrities dem “right”, to assign celebrities affected by the text message.
c) This assessment stands up to legal scrutiny. The use of the plaintiff's portrait in the defendant's Facebook post is not permitted in accordance with §§ 22, 23 KUG justified.
aa) A consent of the plaintiff according to § 22 Set 1 KUG is not available.
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bb) The scope of § 23 Abs. 1 No.. 1 However, KUG is open. Since the self-promotion of press organs also protects the freedom of the press in accordance with Art. 5 Abs. 1 Set 2 GG is subject to, the use of the plaintiff's photo did not serve exclusively the private business interests of the defendant, but indirectly also an information interest of the general public that is worthy of protection. The revision accepts this correct assessment of the appellate court as favorable for it.
cc) The court of appeal rightly has in the context of § 23 Abs. 1 No.. 1 KUG weighs the interests of the plaintiff higher than those of the defendant.
(1) The appellate court took this into account in favor of the defendant correctly and without objection from the appeal, that the plaintiff is a prominent person and that it is a not unfavorable photo only from the area of ​​his professional activity and thus his social sphere. In addition, the plaintiff is only in the – only protected by simple law – property assignment content of his personality right and not also in his – also constitutionally guaranteed – ideal component affected (vgl. on this also BGH, Wheat 2011, 647 Rn. 34 and 40 – market & People).
(2) On the part of the defendant, the appellate court did not weigh up any legitimate issues with weight and justified this among other things, that the posting related to the plaintiff is on the verge of a deliberate false report and thus at best at the very edge of the protection area of ​​Art. 5 Abs. 1 Set 2 GG lie. The related objection of the revision, for the impartial average reader is obvious, that the statement is directed at only one of the four people depicted, and therefore there is no danger, that this jumped to conclusions and the statement
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finally assign one of the persons, does not penetrate. The use of the plaintiff's portrait was of no information value in itself. At best, it indirectly served the public interest in information, by using the image for it, Draw attention to the linked target article. The plaintiff himself was not the subject of the editorial reporting and was in no way connected with Roger Willemsen's illness. The fact highlighted by the revision does not change this, that all four depicted people share the common role of moderator.
(3) In this situation, Art. 5 Abs. 1 Set 2 GG protected freedom of the press of the defendant no overriding weight compared to the property law component of the personal rights of the plaintiff. The revision objects to no avail, it is not a commercial end in itself, Generate advertising revenue through the number of clicks, but finance – especially in the online area – the journalistic work. That’s true, but cannot justify the arbitrary use of the portrait of a prominent person for reporting without any contextual connection to her. The plaintiff does not have to accept, that his portrait – as in the case of dispute – is used by the press free of charge to advertise editorial contributions, that do not concern him. The possibility of using the freedom of the press is not thereby – as asserted by the appeal – restricted to an intolerable degree. There is no apparent reason, to privilege a press organ because of its journalistic function, if those – as in the case of dispute – is not sufficiently affected (vgl. BGH, Wheat 2013, 196 Rn. 43 – Playboy on Sunday).
3. From an auditing point of view, there is nothing to be objectionable to, that the appeals court will include the value of the notional license fee payable by the defendant to the plaintiff 20.000 € has measured.
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a) The subject of the enrichment claim is (unauthorized) commercial use of an image. Since this cannot be published, ist nach § 818 Abs. 2 BGB to pay compensation in the form of a fictitious license fee. Anyone who uses the image of a third party for commercial purposes without authorization, shows with it, that he attaches economic value to the process. The infringer must allow himself to be adhered to the property-related assignment created in this way and pay compensation for the value corresponding to the use. Dies gilt unabhängig davon, whether the person pictured would have been ready and able, allow the illustration against payment of a reasonable license fee; because the payment claim does not constitute the consent of the person concerned, Rather, it represents the compensation for an unlawful interference with a disposition authority exclusively assigned to the person concerned (vgl. References omitted 169, 340 Rn. 12 – Resignation of the finance minister; BGH, NJW 2012, 1728 Rn. 24, each with further references).
No different than in the case of a fictitious license fee to be paid as compensation, its amount is also within the scope of an enrichment law claim by the criminal court according to § 287 Abs. 2 ZPO to appreciate (vgl. BVerfG, GRURRR 2009, 375 Rn. 22). To ask is, what reasonable contractual partners would have agreed as remuneration for the actions of use carried out by the infringer. As part of the determination of the objective value of the user authorization, which is decisive for the assessment of the license fee, all relevant circumstances of the individual case must be taken into account and comprehensively assessed (for the claim for damages cf.. BGH, Judgment of 13. September 2018 – I ZR 187/17, Wheat 2019, 292 Rn. 18 = WRP 2019, 209 – Sports car photo). There are only minor requirements for the type and scope of the estimation bases to be provided by the injured party. The tribunal has a great deal of leeway within the limits of its free discretion. The actual judicial estimate is also only subject to a limited review by the appeal court. It is only verifiable, whether the trial
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Legal principles for the assessment of an enrichment claim are misunderstood, has disregarded essential assessment factors or based its estimate on incorrect standards (vgl. BGH, Wheat 2019, 292 Rn. 24 – Sports car photo).
b) The appellate court also proceeded from these principles and implemented them, when it comes to determining the license amount, the outstanding market is particularly important- and advertising value of the plaintiff and its extraordinarily high level of popularity have been taken into account. The few clicks claimed by the defendant did not say anything, how many users the posting (without clicking) would have noted; in this respect, a very significant group of users can be assumed. The defendant's objection, the entire measure ran only very briefly and also had negative headlines and a so-called “Shitstorm” produced at their expense, do not matter. Only to be based on the actual clicks achieved for the specific contribution or hypothetically achievable with a typical duration and the income directly flowing from them, do not take sufficient account of the advertising that has been carried out. Above all, the relation to the very sensitive health is essential- or. The subject of the illness and the plaintiff's cancer that was put into the room as possible. Taking these aspects into account, the requested license analogy appears from 20.000 € sufficient and appropriate.
c) This assessment stands up to the revision-law review.
aa) On the one hand, the appellate court rightly has the very dominant market- and advertising value of the plaintiff and his exceptionally high level of popularity are taken into account (vgl. this BGH, Wheat 2013, 196 Rn. 43 – Playboy on Sunday). On the other hand, it has correctly assumed, that in the case of the attention advertisement that is present here alone in comparison to an inadmissible one
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Testimonial advertising with a celebrity is one of the weaker forms of advertising.
bb) The revision attacks in vain, that the appellate court has assumed a very significant group of users. In this respect, she reprimands, there was no apparent, on which the appeals court based this assumption, because it did not make any determinations on the spread of the Facebook presence such as the number of followers. With this, however, the revision cannot be heard, as the factual determination of the court of appeal, it is based on a very significant group of users, is binding for the revision procedure, after the defendant did not request a correction of the facts according to § 320 ZPO has provided.
(1) After § 559 Abs. 1 Set 1 ZPO is only subject to the submissions of the parties to the judgment of the appellate court, which can be seen from the appeal judgment or the minutes of the meeting. After § 314 Set 1 ZPO provides the facts – unless otherwise stated in the minutes of the meeting (§ 314 Set 2 Code of Civil Procedure) – Evidence of an oral submission by one of the parties. Factual findings also belong to the offense in this sense, which can be found in the reasons for the decision (BGH, Judgment of 16. More 2019 – III ZR 176/18, WM 2019, 1203 Rn. 17 mwN). A procedural objection according to § 551 Abs. 3 Set 1 No.. 2 BUCHST. b ZPO is not an option for correcting factual findings by the appeals court. If no correction of the facts is requested, the alleged incorrectness of the facts in the revision procedure cannot be found within the framework of § 559 Abs. 1 Set 2, § 551 Abs. 3 Set 1 No.. 2 BUCHST. b ZPO are taken into account (vgl. BGH, Judgment of 16. December 2010 – I ZR 161/08, Wheat 2011, 459 Rn. 12 = WRP 2011, 467 – Satan's vengeance; Judgment of 10. January 2019 – I ZR 267/15, Wheat 2019, 813 Rn. 111 = WRP 2019, 1013 – Cordoba II; BGH, WM 2019, 1203 Rn. 17 mwN).
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(2) This is how it is in the event of a dispute. The finding of a very considerable group of users objected to by the revision is part of the offense of the appeal judgment. Information in the minutes of the meeting, which invalidate this statement, are neither presented nor evident. Besides, the revision does not claim, that the decision of the appellate court in question – for example due to the fact that the number of followers is actually low – is incorrect and the decision is therefore based on an incorrect statement (§ 545 Abs. 1 Code of Civil Procedure). As far as they only gave the lecture in the lower court 6.650 Clicks repeatedly, this does not affect the number of people, who have taken note of the Facebook posting at issue, just the number of people, who followed the link contained in the Facebook posting.
cc) The appellate court rightly held it unimportant and unaffected by the appeal, that the Facebook posting made negative headlines and one “Shitstorm” has produced at the expense of the defendant, in particular because it is not secured, that these negative headlines harmed the defendant and did not at least contribute to the general increase in awareness of the media product of the defendant.
dd) Die Revision rügt vergeblich, that the court of appeal is sensitive to health- or. Has attached great importance to the disease issue. Contrary to the view of the revision, this is neither irrelevant nor alien to the license analogy. On the one hand, it does not matter for the assessment of the enrichment compensation, whether the person pictured would have been ready at all, to allow the use of his portrait against payment of an appropriate license fee (vgl. References omitted 169, 340 Rn. 12 – Resignation of the finance minister). On the other hand, the appellate court referred to it in a comprehensible manner, that reasonable contracting parties act in such a questionable way “Playing with cancer” of a celebrity would have agreed a higher license payment than for an advertising campaign
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in a completely harmless or even positive context. Soweit Revision meint, it lies far, that sensible contracting parties monetized the issue of cancer, she just tries, to replace the appellate court's appraisal with their own, without showing a legal error.
ee) Furthermore, it is not objectionable under revision law, that the appellate court based its assessment of the fictitious license fee on the outcome of the proceedings, that of the Senate decision “Who will be a millionaire?” (BGH, Wheat 2009, 1085) was the basis. The Higher Regional Court of Hamburg has the plaintiff there with judgment of 22. December 2009 – 7 You 90/06 – a notional license fee of 20.000 € awarded. Die Revision rügt vergeblich, there was no apparent, to what extent the present case should be comparable with the underlying facts, because the Facebook contribution at issue lags far behind the type of use there. With these considerations the revision only tries again, to substitute their own assessment for that of the appellate court in a manner that is inadmissible under review law. This has quite recognized, that in the case there in any case the competence and popularity of the plaintiff were transferred to the puzzle booklet, in the event of a dispute, however, there is only an advertising campaign. In the context of its factual assessment, however, the appellate court accepted, this difference is due to the relation to the very sensitive health- or. Disease issue outweighed and the plaintiff's attention value is not reduced as a result, that he's not alone, but was shown with three other moderators. The court of appeal rightly referred to this, that just the compilation of four prominent moderators in a smaller space the functioning of the “Click meat” and the particularly popular plaintiff has a not insignificant share in it.
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ff) The revision finally attacks without success, that the appellate court did not accept the defendant's submission, which was submitted to expert evidence, In the case of online marketing methods, the fee would usually be dependent on the clicks achieved with the respective measure and would be agreed in the event of a dispute – even with subordinate “normal” Duration of the posting on social media – no significant income was generated (maximal 300 €, to be divided by four images). The court of appeal has executed in a manner that is not objectionable under revision law, a posting that is visible to innumerable users in social media, such as the controversial one, always wear (at least also) to increase the general level of awareness of the defendant and its media product and it should therefore not be focused on the clicks and the income directly flowing from them. With your complaint, it lies far, that the parties with an expected income from advertising in the amount of approximately 300 € a license fee of 20.000 € would have agreed, the revision would like to replace only the actual judicial assessment of the appellate court with its deviating own.
III. Whether the plaintiff as well – as the appeals court accepted – a fault-based claim for damages from § 823 Abs. 1 BGB in connection with Art. 1 Abs. 1, Art. 2 Abs. 1 GG or. § 823 Abs. 2 BGB in connection with §§ 22, 23 KUG is entitled to, does not require a decision. Its amount would be no different from that of the right to enrichment according to § 812 Abs. 1 Set 1 Fall 2 BGB to measure.
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C. A reference to the Court of the European Union under Article. 267 Abs. 3 TFEU ​​is not caused (vgl. ECJ, Judgment of 6. October 1982 – 283/81, Slg. 1982, 3415 Rn. 21 =, A 1983, 1257 – Cilfit u.a.; Judgment of 1. October 2015 – C-452/14, GRUR Int. 2015, 1152 Rn. 43 – Generic Docs, mwN). Im Streitfall stellt sich keine entscheidungserhebliche Frage zur Auslegung des Unionsrechts, which has not already been clarified by the case law of the Court of Justice or which cannot be answered unequivocally.
D. After the revision of the defendant is the cost implications of § 97 Abs. 1 ZPO zurückzuweisen.