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Landmark Judgment: 15th Civil Senate of Cologne Higher Regional Court Partially Amends Contested Decision


The 15th Civil Senate of the Cologne Higher Regional Court decided today in the aforementioned proceedings and partially amended the contested regional court decision.

In the proceedings (cf. the press release dated October 7th, 2022 – PM 10/22), the plaintiff takes action following an earlier injunction procedure (OLG Cologne, judgment of May 29th, 2018, ref.: 15 U 65/17, available on the database www.nrwe.de, partially repealed by the BGH, judgment of November 29, 2021, Ref. VI ZR 248/18, available via the database www.bundesgerichtshof.dethen decided by partial judgment of the Senate of June 22, 2023, Ref. 15 U 65/17, nv) the defendants 1) to 3) to refrain from publishing and distributing further passages from the document written by the defendants 1) and 2) and in Publisher of the defendant 3) to claim a published book called “Legacy The Kohl Protocols” (or an audio book of the same name). Furthermore, she requests information with the – at least primary – aim of pursuing claims for the distribution of the so-called infringer’s profits due to an alleged interference (also) with “valuable components” of the testator’s general personal rights. As a result of the death of defendant 2), the proceedings have been interrupted in this respect. Insofar as two other defendants – former defendants 4) and 5) – are sued by the plaintiff for injunctive relief and deletion of several statements because of their own press reports about the book, the proceedings have been separated and decided in the meantime (judgment of the Senate of June 22, 2023 – 15 U 135/22, nv; non-admission complaint pending: BGH, Ref. VI ZR 226/23).

The regional court essentially upheld the action for injunctive relief against defendant 1) and the action for information brought against him as part of a step-by-step action. The regional court completely dismissed the action against defendant 3) for an injunction and as part of a step-action action for information and damages. Both the plaintiff and defendant 1 have appealed against this judgment. In the appeal proceedings, defendant 1) requested, as part of a so-called interim counterclaim against the plaintiff, a declaration that no contractual confidentiality obligations had been established between defendant 1) and the testator with regard to the memoir discussions.

The 15th Civil Senate – after taking evidence by questioning witnesses and after hearing the plaintiff and the defendant 1) – partially amended the contested decision in its judgment dated today. Accordingly, both the plaintiff’s appeal and the appeal of defendant 1) are partially successful. With regard to the injunction application directed against defendant 1), the Senate basically affirmed the existence of a contractual injunction claim, but made some minor changes with regard to the scope of the condemnation to refrain from publishing/distributing certain passages of the book. The Senate rejected defendant 1’s application for an interim determination aimed at establishing a lack of contractual confidentiality obligations. With regard to defendant 3), the Senate only upheld the action to omit numerous passages from the book to a limited extent. The plaintiff’s further appeal against defendant 3) was rejected.

To provide more detailed justification for the decision, the Senate essentially stated the following:

In relation to that Defendant 1) the plaintiff is essentially entitled to a contractual claim for injunctive relief. Based on the results of the taking of evidence and taking into account the other established circumstances, it cannot be assumed with certainty that the testator and defendant 1) were involved in the work on the “memoir project” – under the umbrella of what they each only concluded with the publisher , insofar as written contracts do not clearly regulate an obligation of confidentiality – an express or implied agreement was made directly about a (comprehensive) obligation of confidentiality on the part of defendant 1). However, the defendant 1) is subject to a comprehensive obligation of confidentiality as a secondary contractual obligation due to a contract-like legal relationship tacitly established between him and the testator. Due to the special overall circumstances present here, it can be assumed that a legal relationship creates legal obligations. The existing (ancillary) obligation was not eliminated by later events.

The consequence of the contractual obligation is, among other things, that defendant 1) can no longer rely on his right to freedom of the press and freedom of expression under Article 5 Paragraph 1 of the Basic Law in relation to the testator. The contractual obligation of confidentiality does not only refer to the reproduction of any statements made by the testator in the form of a literal or analogous reproduction of quotations. Rather, it also includes all other information and circumstances from the entire memoir work as well as all related assessments by defendant 1), which allow conclusions to be drawn about statements made by the testator and/or other incidents during the memoir work. An exception only applies to the reproduction of publicly known facts and to circumstances in which the defendant 1) only accurately describes the external framework of the memoir discussions and the parties’ legal disputes in a “poor detail”. After comprehensive examination of the passages contained in the book, the ban on publication and distribution should be announced with regard to the individual passages that the Senate recognized as inadmissible. Further passages that are considered permissible in detail should be excluded from the ban – in this respect the lawsuit is dismissed. The prerequisites for a “total ban” of the book and a claim for injunctive relief derived from this must be denied.

The interim determination application by the Defendant 1) is accordingly unfounded.

The plaintiff’s case against the Defendant 1) The asserted claim to information must be affirmed. It was given in preparation for a claim for tortious damages to which the plaintiff is entitled (undisputedly hereditary) due to an interference (also) with the assets of the testator’s personal rights. Basically, even in the event of negligence – which can only be determined here – on the part of defendant 1), who failed to recognize his unwritten contractual obligation, there is a claim to the so-called infringer’s profit as part of the so-called triple damage calculation recognized in the area of ​​intellectual property.

Against the Defendant 3) There is only a limited right to injunctive relief in relation to individual passages. In the absence of a contractual relationship between the testator and defendant 3), the plaintiff would only be entitled to injunctive relief after the testator’s death if it was assumed that there was a postmortem violation of personal rights. Taking into account the criteria developed in case law, this can only be assumed here in special cases, including where the testator has been credited with alleged personal statements as untrue statements of fact, which he did not make, in a different context or at least in a different mood, volume, tone of voice, etc and if this falsifies the testator’s view of life and affects his human dignity. However, these requirements were only procedurally substantiated for a few book passages by the plaintiff, who was in principle burdened with the burden of presentation and evidence, particularly in the context of some misquotations already criticized in the preliminary proceedings as well as untrue or deliberately incomplete factual statements, for example with regard to the farewell letter from the first wife of the testator. In view of the tape recordings from the memoir discussions or digital audio copies – which are not available to the Senate in full – no further procedural court orders for production were necessary. This is also not required in relation to defendant 1), who may be required to return the information under substantive law. There is no reason to postpone the proceedings until the conclusion of the production proceedings – which were also conducted by way of a step-by-step action and are currently pending again at the Cologne Regional Court – due to, among other things, the audio copies of the tapes held by defendant 1) (see BGH, judgment of September 3, 2020 – III ZR 136/18, available via the database www.bundesgerichtshof.de) to suspend.

The district court rightly dismissed the step-action lawsuit as a whole. The plaintiff stands against the Defendant 3) Due to the lack of a legal basis, there is no right to information and no right to payment of the profit made from the sale of the book. Since defendant 3) – unlike defendant 1) – invokes Article 5 Paragraph 1 of the Basic Law in connection with the book publication and cannot be accused of significant negligence, claims for damages in tort or claims for presumptuous self-management do not arise here into consideration.

The Senate allowed the appeal (only) with a view to the conviction of defendant 1) to provide information or the dismissal of the step-action lawsuit in relation to defendant 3) for clarification of relevant legal questions by the highest court.

The judgment of the Cologne Higher Regional Court announced on February 6, 2024 – Ref. 15 U 314/19 – will soon be published in the anonymized full text at www.nrwe.de.

Dr. Eva Moewes
Head of Press and Public Relations

2024-02-07 00:21:20
#NRW #Justice #Cologne #Higher #Regional #Court #Appeal #procedure #KohlRichter #Swan

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