Litigationblog

Celle Higher Regional Court: Appeal proceedings against former mayor and against municipality for breach of personality rights and breach of the General Data Protection Regulation (GDPR)

We represented our client in a case against the former mayor of a municipality in Lower Saxony and against the municipality itself on the grounds of a violation of personality rights and a violation of the General Data Protection Regulation (GDPR).

Facts about damage to reputation and about the violation of our client’s personality rights

On 20.12.2020, a vote on a referendum on the preservation of a house facade was pending in the aforementioned municipality. Our client, the plaintiff in the case, noticed a few days before the vote that the voting documents did not meet the legal requirements under Section 25 of the Lower Saxony Municipal Election Code. According to this municipal code, it is obligatory to note “Postage to be paid by recipient” on the election envelope in the case of postal votes. However, “Please pay postage” was printed on the election envelopes instead, which was an indisputable violation of the Municipal Election Ordinance. There was therefore a considerable risk that citizens would not participate in the absentee ballot for this reason, especially in light of the fact that absentee voting would be increasingly used under pandemic conditions.

Subject of the dispute

Our client complained about this error to the mayor, the defendant in this case, in a personal e-mail. In our client’s opinion, the voting officer bore full responsibility. Our client suggested that the voting officer be relieved of his duties and that a new trustworthy voting officer be appointed.

Dissemination of our client’s private e-mail

The defendant did not reply to our client’s e-mail. Instead, the then-mayor disseminated our client’s e-mail by forwarding it to a variety of individuals. These individuals included, among others, administrative committee members and all council members of a nearby community.

How many people had actually received our client’s private email forwarded by the mayor is not known to our client.

Reading out of our client’s private e-mail in public

In addition to this unauthorized forwarding of the private contents of our client’s e-mail, the reading out of the same before an administrative committee followed one day later. The reading out in front of all those present took place with the consent of the mayor at the time. At that time, our client did not know about the public reading and had not agreed to it. During the public reading, our client’s first and last name were explicitly mentioned as the author of the e-mail. In addition, the demand was expressed in the administrative committee that the plaintiff (our client) should face criminal consequences because of his – completely harmless – e-mail to the mayor.

Although the e-mail did not contain any damaging or illegal content, the defendants pursued the goal of portraying our client in public as a criminal. On the other hand, they did not correct their undisputed violation of the local election ordinance.

Vote on criminal consequences in front of the Schaumburg press

Even after the vote on the referendum on the preservation of a facade had already taken place, the defendants did not desist from the public defamation of our client. The defendants had invited the entire Schaumburg press to another public council meeting. In this meeting it was publicly discussed in presence of the mayor whether a criminal complaint should be filed against our client because of his – completely justified and harmless – e-mail. This e-mail from our client was read out again in public before the Schaumburg press. In the presence of our client, the council members voted with 10 yes votes to 2 abstentions in favor of filing criminal charges against our client for insult. The invited Schaumburg press then reported on this decision in detail.

In fact, however, the defendants had then never filed criminal charges against our client after the vote. After all, he was not accused of anything. The defendants had pursued only the crude goal of defaming our client in public before the invited press.

Attorney warning letter from us

We issued a warning letter to the defendants on behalf of our client. The defendant should refrain from further using the personal data of our client from the e-mail of our client to the mayor and from forwarding this e-mail to third parties. The defendants should also refrain from publicly reading out our client’s e-mail and from publicly voting on an alleged criminal liability of our client’s conduct. In addition, we demanded that the defendant pay monetary compensation to our client for pain and suffering. The defendant’s side refused to meet our claims.

Our client’s claim for injunctive relief

Our client’s claim for injunctive relief arises from the right to erasure, which is governed by Article 17 of the GDPR. Our client’s e-mail contained personal data that the defendant (mayor) processed by forwarding the e-mail to a large number of other persons. According to Section 4 No. 2 of the GDPR, the processing of personal data includes, in addition to operations such as collection, recording or storage, disclosure by transmission and dissemination or any other form of making available. Our client had not given the defendant permission to forward his private e-mail to third parties. He had also not consented to the public vote on his criminal prosecution. There was no justification for the municipality’s actions. The mayor could simply have publicly pointed out and then corrected the error in the absentee ballots. It was by no means necessary to publicly read out our client’s private e-mail in order to correct the error in the absentee ballots.

Our client’s claim for monetary compensation

Our client’s claim for monetary compensation against the two defendants for pain and suffering arises in the present case in particular from Article 82 (1) of the GDPR in conjunction with Article 4 No. 7 of the GDPR. This does not require a particularly serious violation of our client’s personality rights.

How can the damages for pain and suffering to our client be measured?

In order to clear up the question of how high the monetary compensation for our client should be assessed in order to compensate for our client’s damages for pain and suffering, some aspects can be considered in the present case especially in favor of our client:

First, the defendants are public officials or local authorities bound by law. Contrary to them being bound by law, they forwarded an e-mail containing personal data to a large number of persons and also read it out in public without the consent of the person concerned (our client) in the presence of the press invited by the defendants themselves. In addition, the defendants had voted in front of the assembled press whether criminal charges should be brought against our client on the basis of his – completely harmless – e-mail to the mayor because of the faulty absentee ballots. This entire process was highly unpleasant for our client. Due to the considerable impairment of our client, we requested the payment of significant damages for pain and suffering to our client.

Legal proceedings before the Bückeburg Regional Court and appellate proceedings before the Celle Higher Regional Court

The subsequent legal proceedings took place in the first instance before the Regional Court of Bückeburg and in the second instance in the appellate proceedings before the Higher Regional Court of Celle. We wish to maintain confidentiality about the content and outcome of these proceedings. However, this case may illustrate that citizens can certainly defend themselves effectively against public officials and the sovereign power of the state.