DE: Principle of the right to be heard in the case of online information

Apr 1, 2022 Benn-Ibler Rechtsanwälte

According to the German Federal Supreme Court (Bundesgerichtshof, BGH), in order for a court to be able to use information obtained from the internet as a basis for a judgement, the results of the research must first be shared with the parties and they must be given the opportunity to comment. A Higher Regional Court (Oberlandesgericht, OLG) used information collected from the Internet by VW to accuse Audi AG of conduct contrary to the law.

In another case of the so-called VW diesel scandal, a decision had to be made whether the defendant, Audi AG, could be blamed for selling vehicles with an inadmissible deactivation device. For this purpose, the Higher Regional Court conducted research on the internet and found a press release as well as an organisational chart of the VW group. The sources provided information on the interconnectedness of the Audi AG and VW groups. The OLG based its decision on the information gathered online. However, the parties were not informed about the use of the collected information.

The BGH found a violation of the procedural principle of the right to be heard under Article 101 para 1 of the Constitutional Law. If a court wants to base its judgement on facts taken from the internet as public in the sense of Section 291 of the Code of Civil Procedure (Zivilprozessordnung), it must give the parties the opportunity to comment by informing them. A reference can only be omitted if it concerns circumstances that are readily known to the parties and of which they know that they are relevant for the decision. Here, the OLG should have made the result of its research accessible to the parties and given them the opportunity to comment.

The violation of the right to be heard was also significant, because in the event of a timely reference to the information gathered, it would have been possible for Audi AG to present rebutting arguments. If the court of appeal had taken note of this submission and considered it, it cannot be ruled out that it would have reached a different result.

BGH, III ZR 195/20 (27.01.2022)