Anti-Filesharing article infringing on personality rights?

The Higher Regional Court (OLG) Cologne had to decide whether the article 'The Warning Letter Industry' published in the magazine 'c't – 1/10' contained statements infringing on enterprise personality rights against the Karlsruhe filesharing law firm Nümann + Lang.

The computer magazine 'c't' of Heise Verlag published in its January 2010 issue an worthwhile article on warning letter practices in connection with infringements relating to illegal file-sharing networks. In doing so, the author named, alongside the Frankfurt law firm Kornmeier & Partner, the Karlsruhe law firm Nümann + Lang as an example of the warning letter industry for close business connections between the copyright holder or rights holder, the research company and the respective warning letter law firm itself. The article in dispute furthermore describes certain irregularities in the warning letter industry regarding the billing of possibly non-incurred legal fees, which would constitute the criminal offence of (attempted) fraud.

These allegations prompted Nümann + Lang to demand from Heise Verlag and from the author of the article by means of a warning letter the cessation of such conduct under penalty of a fine, since the Karlsruhe law firm was allegedly attributed criminal misconduct contrary to the facts.

This claim was granted to Nümann at first instance, so that Heise Verlag brought the present legal dispute before the appellate court.

Court decision

The Higher Regional Court (OLG) Cologne reversed in its judgment of 18.01.2011 – Az. 15 U 130/10 the first-instance judgment of the Regional Court (LG) Cologne and decided thus against Nümann + Lang. The warning letter law firm was not affected in its (enterprise) personality right by the statements contained in the article and specifically objected to.

In the opinion of the Cologne judges, the article, as far as the billing practices of the warning letter industry or the bad actors in this field are concerned, was held neutral. With regard to Nümann + Lang, only undisputed circumstances that point to a particularly efficient warning letter activity were presented. Against Nümann, no allegation of illegal conduct could be discerned. The accurate reporting corresponding to the truth concerning intensive warning letter activity in cooperation with a company engaged in perpetrator research did not constitute a statement infringing on (enterprise) personality rights.

Conclusion

The Cologne judges of the Higher Regional Court (OLG) considered that the truthful presentation of the efficiently organized structure of their colleagues Nümann and Kornmeier alone was insufficient to establish a violation of enterprise personality rights. Had the 'c't' article specifically referred to Nümann + Lang and/or Kornmeier & Partner regarding the questionable billing practices, the judges would probably have reached a different conclusion in the absence of convincing evidence available in that regard.