Proceedings in Germany for violation of a Russian's personality rights?

A legal question was submitted to the Federal Court of Justice (BGH) in Karlsruhe as to whether German courts have jurisdiction in disputes relating to the violation of the personality rights of a foreign national by a citizen who is also resident abroad, where the internet publication is made on the internet portal of a German provider.

A Russian businessman residing in Russia and Germany felt that his personality rights were violated by a post on the internet blog www.womanineurope.com, which he noticed during a stay in Germany. The article was written in Russian language and Cyrillic script by a former classmate from the United States and posted on the portal. Since the publishing internet service is based in Germany, the Russian national sued for an injunction against several statements, monetary compensation and disclosure in the first instance before the Regional Court (LG) Cologne and in the appeal before the Higher Regional Court (OLG) Cologne. Both courts held themselves to be without jurisdiction; however, the OLG Cologne granted the appeal to the Federal Court of Justice (BGH).

Decision of the Court

The Federal Court of Justice (BGH) decided with Judgment of 29 March 2011 – Az. VI ZR 111/10 that German courts do not have jurisdiction in such cases.

German courts are internationally competent to decide on claims for violation of personality rights on the internet only if the contents objected to as infringing rights objectively exhibit a clear domestic connection in the sense that a collision of the conflicting interests has occurred or may occur in the domestic territory according to the circumstances of the specific case, in particular on the basis of the content of the specific message. In doing so, the plaintiff's interest in respect for his personality rights on the one hand and the defendant's interest in designing his internet presence and his reporting on the other hand must be weighed against each other.

In the present case, such a clear domestic connection cannot be established. The travel description written in Russian language and Cyrillic script described a private encounter of the parties in Russia. The circumstances described from the plaintiff's private sphere were of interest primarily to those involved in the meeting. These persons – with the exception of the plaintiff – did not have their residence in Germany in the present case. Merely by virtue of the fact that the plaintiff retrieved the report at his place of residence in the domestic territory, no clear domestic connection is established. A course of conduct by the classmate that would establish jurisdiction of German courts also cannot be derived from the location of the server in Germany.

Conclusion

In the present case, the location of the violation of personality rights and the location of the most effective legal protection are separated. Only with a German judgment could an injunction against the German portal operator be realised as quickly as possible. To that extent, the decision of the Federal Court of Justice (BGH) is surprising.