OLG FFM: No deletion but supplementary claim on a homepage

The decision

If a lawyer reports on a court victory on his homepage and if this decision is later overturned by a final court decision, he does not have to delete this report retrospectively. However, at the request of the person concerned, he would be obliged to update the contribution (supplementary claim). This was decided by the Frankfurt am Main Higher Regional Court.

The plaintiff operates a credit agency in Wiesbaden that is active throughout Germany. The defendant is a lawyer. He obtained a preliminary injunction against the plaintiff in November 2020 and subsequently reported on it in an attorney blog on the firm’s website under the headline “Preliminary injunction issued against (the plaintiff); coercive measures sought.” The preliminary injunction was subsequently rescinded by a final court decision following an objection by the plaintiff.

The plaintiff objects to statements made in this report, which remains available after the preliminary injunction was lifted. The Regional Court had granted the plaintiff’s request for an injunction. The defendant’s appeal against this was successful before the OLG.

The plaintiff had no right to injunctive relief against the defendant, the OLG found. True factual allegations – such as the issuance of the preliminary injunction in this case – are generally to be accepted. This also applies if they are disadvantageous for the person concerned. The reader recognizes here that the article does not reflect a status updated after its publication.

The legally binding revocation of the preliminary injunction in the meantime also does not constitute a claim for injunctive relief. It is true that the continued availability of originally lawfully published reports may be inadmissible in individual cases. “If the factual situation known and used as a basis for the original report subsequently changes and therefore makes the original report appear untrue or at least in a different light,” personal rights could be violated, the OLG expresses concern. If there is a subsequent change, the interests concerned must therefore be weighed up again. Here, however, the interests of the plaintiff did not justify prohibiting the defendant from reporting on the annulled order in the future. Since the article was a commercially oriented blog, the defendant could not – like the press – plead that it was not obliged to continue reporting on a topic once it had been taken up in the event of new developments. However, the lower degree of dissemination of the blog post also results in less prejudice to the plaintiff. In addition, the defendant was in principle to be accorded a creditable interest in informing current and potential customers that a court had initially ruled in favor of its client. Deleting the challenged statements would therefore be too strong an encroachment on the defendant’s freedom of profession and opinion. A supplement on the progress of the proceedings would be sufficient and proportionate here. The plaintiff, who complained that “only half the truth” was reported, would also have been entitled to this. However, it should also have requested such a supplement. This was lacking here.

The decision is not final. The plaintiff may seek leave to appeal to the Federal Court of Justice (BGH) by filing a complaint of non-admission.

My opinion

The judgment is not without some question marks in procedural law, especially when one wonders whether the action for performance and the action for an injunction are not thrown together somewhat wildly here. From the result, however, I find the judgment okay and it could be applied so or so similarly to other questions, when it comes to whether old articles must be deleted, if a decision, for example of an authority such as the BaFin, has changed and if the entry in the concrete form ex is now wrong. If you want to make such claims, I would always advise you to seek professional help, because it is all too easy to make the wrong claims.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.