Adblocker detection scripts vs. Article 5 (3) of the ePrivacy Directive: A German law take

It appears that we may be about to experience a new phase in the life of Article 5 (3) of the ePrivacy Directive as amended in 2009, as brief as it may possibly be as a result of the coming Regulation and the revisions that the ePrivacy Directive may be subject to in its wake.

Twitter privacy activist Alexander Hanff has been able to create considerable attention (such as here and here) for his position that client side scripts used by publishers in order to detect AdBlockers used by their (would-be) readers are in conflict with said Article, posting on Twitter a letter from the Günther Oettinger’s team in the EU Commission that, as per him, confirms his position.

https://twitter.com/alexanderhanff/status/722861362607747072

Aside from the slightly amusing twist that the Commission, in making reference in the same letter to add-ons or plug-ins expressing a user’s preference regarding, for example, whether or not he or she does or does not accept the storage of information on his/her “terminal equipment”, appears to overlook that adblockers have to be detected first before they can be “respected” as conveying a preference, we shall have a brief look at how things would play out under German law, as it is in place at this time. Continue reading

Why B2B is not necessarily always B2B when it comes to consumer protection

Online-shops that officially trade as B2B-shops must comply with European consumer protection regulations or make actually sure that only business customers can place orders in the shop. In order to ensure that consumers do not use the shop, it is not sufficient to provide the respective disclaimer on the website. That was recently ruled by the Regional Court in Dortmund.

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“Hyperlink does Not Constitute a Copyright Infringement”

Article 3 (1) of Directive 2001/29/EC on the “harmonisation of certain aspects of copyright and related rights in the information society” legally communicating copyrighted works to the public depends on the copyright holders authorization.

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Open Source Software, License Compliance and the OpenChain Working Group

So you set up an open source license compliance program in your company. You educate your employees and you make sure you know how they handle open source software. But what about the software, which is supplied to you? Do you know how your supplier handles open source software? Can you trust that they know what they are doing when it comes to open source license compliance? Continue reading

MFM fee recommendations and the license analogy method

Rightholders are entitled to damages when their photographs are used by third parties who have not been granted the necessary rights of use. Under German copyright law, damages are calculated according to the so-called license analogy method. This method assumes a fictitious license agreement upon reasonable conditions between the rightholder and the infringer. The rightholder then receives monetary compensation amounting to the royalties the parties would have reasonably agreed on. Continue reading

On “warranty” and “Gewährleistung”

When drafting and negotiating technology agreements of almost any sort between German companies and US or UK companies (or companies from other common law based countries), particularly on software, one of the various Groundhog moments that one experiences is the never-ending discussion on everything that is “warranty”. Continue reading

Filesharing reloaded

The Higher District Court in Munich (the “OLG”, 29 U 2593/15) revisited the evergreen topic “filesharing”. It ruled that, in case of an alleged copyright infringement, the owner of an internet connection has to present all known facts with regard to the infringer, even if such infringer is a family member. If the owner of the internet connection does not do so, he will be liable himself. Continue reading

Protection for protection rights: The Federal Court of Justice on safeguard measures for video games

The German Federal Court of Justice (“BGH”, Videospielkonsolen II) has stated that technical safeguard measures for video games fall under the scope of section 95a (3) nr. 3 of the German Copyright Act (“UrhG”), if such measures (in the case decided: Nintendo DS cards for Nintendo DS games consoles) are specifically designed to prevent illegal copies of the games which are played on the consoles.
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Creative Commons and “non-commercial” use of works on websites

In a very recent ruling of 31 October 2014, the Higher Regional Court of Cologne (“OLG”) has further defined the scope of “commercial use” within the meaning of the Creative Commons Licenses de.creativecommons.org. According to the OLG (Az. 6 U 60/14), the use of a picture licensed under the CC-BY-NC 2.0-License to illustrate an article on a radio station’s website is “non-commercial” use within the meaning of the CC-License, even if users pay for the website by paying radio license fees. The OLG further discusses the question, when cutting a picture into shape can be considered as “adaptation” within the meaning of the license.
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Do XING profiles require a masthead?

This past summer, a decision of the Stuttgart Regional Court became known by the name #XINGGATE. In its decision (LG Stuttgart, decision of June 27, 2014 – file number: 11 O 51/14), the court held XING profiles to be independent telemedia, to which § 5 Telemediengesetz, the German Law on Telemedia (TMG) applies, meaning that personal XING profiles have be equipped with a masthead under German law.

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… Until Authorship is Proven

Under German copyright law, injunctive reliefs are subject to the condition of danger of repetition. Such danger is assumed once a copyright infringement occurred, but it is eliminated, if the infringer signs a declaration of discontinuance with a penalty clause (in German “strafbewehrte Unterlassungerklärung”) within the set deadline. The Higher Regional Court of Hamburg (OLG Hamburg, decision of October 16, 2014 – file number: 5 U 39/13) now held that such declaration of discontinuance is insufficient, if it includes a so-called potestative clause, i.e. the declaration is subject to the claimant proving his authorship.

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Copyright Law: The Author’s Right to be Named

According to the district court of Kassel’s decision of June 6th, 2014 (file number: 410 C 3000/13) authors of copyrighted works can exercise their right to decide if and how they want to be named as author of their works through terms and conditions. Continue reading

European data protection law and minors – no legal certainty

The fundamental right to the protection of personal data as enshrined in Art. 8 (1) of the Charter of Fundamental Rights of the European Union (PDF) as well as the right to informational self-determination, derived from Art. 2 (1) and 1(1) of the German Constitution are not exclusive right of adults. Also children’s personal data are protected by these fundamental rights and consequently by the European Data Protection Directive (Directive 95/46/EC) or the respective national laws.

But if it comes to the practical compliance for companies, for example if you want to develop an app for children, European data protection laws currently will leave providers alone with an answer to the question, when a consent by minors might serve as the legal basis for the processing of their data. Continue reading

Court Decision: Companies Allowed to run Fanpages on Facebook

The Administrative Court of Schleswig (Verwaltungsgericht Schleswig) held today in three parallel decisions that companies that run their own fanpages on Facebook are not responsible for the social network’s data collection and processing under German data protection law. Continue reading

Federal Supreme Court: Can a foreign company use a .de-domain?

In the case laid before the Federal Supreme Court (Bundesgerichtshof; BGH) the court primarily had to decide about the liability of the administrative contact of the domain dlg.de. However, in the obiter dictum, the court also held under which circumstances a foreign company is entitled to use a .de-domain. Continue reading

Is double opt-in dead?

Last week, quite a few lawyers were more than surprised when they heard about a recent Higher Regional Court of Munich decision dealing with the question of how to get prior consent from recipients of advertising e-mails (decision of September 27, 2012, docket no. 29 U 1682/12). Before, the matter had seemed to be fairly settled but now new questions arise. Continue reading

7th National IT-Summit in Essen

Last week, several German political leaders, members of the federal administration, academics, IT-businessmen and other members of the German society met in Essen for the 7th National IT-Summit. The summit is an invite-only conference being held once a year by the German Federal Ministry of Economics and Technology. It forms the end and new beginning of an ongoing discussion between the members of the six working groups and several sub-working groups to develop a nation-wide (political) IT-strategy for Germany. Continue reading

On the Intricacies of German Unfair Competition Law

It‘s easy to be a unfair competition law violator in Germany. Just operate an eBay shop or deal on Amazon’s market place and use their default settings when informing your customers on how long it will take to get the goods delivered to their homes. In all seriousness, that is what the Bremen Court of Appeals has effectively decided in a judgment in early October. Continue reading

Monetary Penalties for Data Protection Breaches: ICO vs. German DP Authorities

I have just stumbled upon the Information Commissioner’s Office’s  page that informs the British public on the monetary penalties that the ICO has handed down over the last 1 ½ odd years: 26 penalties of about £ 120,000 on average. Not that that kills any of the public authorities and private companies involved (and nor should it). But it shows that where the ICO believes that a breach is serious enough to warrant a monetary penalty the penalties are not only symbolic but designed to at least sting a bit. Continue reading