Leading Decision on Parents’ Liability for Copyright Violation by File Sharing Children

The German Federal Court of Justice yesterday November 15, 2012 decided on how far parents can be held liable for their children’s illegal use of file sharing via peer-to-peer services and copyright violations resulting from that use. Continue reading

Are WLAN-operators internet access providers?

According to German jurisdiction, WLAN-operators can be held liable for online-infringements on third parties’ rights committed via their connection to the internet. That is, unless the operator duly fulfills his obligation to make sure such infringements cannot and will not be committed via his connection. This also applies to WLANs operated in cafés, bars, hotels and similar places. In all these places, the WLAN operator basically has to check what his customers do online and to oblige them to act according to law. Continue reading

“Google Has Few Concerns About the Right to be Forgotten!”

Until last year, the right to be forgotten used to be an idea of Viktor Mayer-Schönberger, an Austrian law professor. He suggested – and probably still suggests – providing a “best before date” for data that is electronically saved. After the expiration of the date, the data would be automatically deleted by the application or computer system. Last year, the idea – or a modification thereof – became part of a draft regulation of the European Commission. Continue reading

Forfeiting a Contractual Penalty by Continuously Storing a Photograph

On September 12th, 2012 the Higher Regional Court of Karlsruhe – 6 U 58/11 – decided on the question, which actions a debtor has to restrain from after he signed a declaration to cease and desist “using a photograph on the internet”. Continue reading

69th German Legal Colloquium

During last week’s 69th German Legal Colloquium the association’s members discussed – amongst other topics – the future of IT-law in Germany (you can find all the decisions here – in German). Their decisions on how to fight cyber crime, data protection and liability are supposed to initiate legal reforms. In some cases, you hope the legislator won’t feel inclined. Continue reading

Update: Cabinet passed Third Proposal for a New Neighboring Right for Press Publishers

In our blog, we have been keeping track of the new neighboring right for press publishers. After staggering in round one and in round two, the amended proposal now knocked out its critics in round three. Did it really? Continue reading

General Data Protection Regulation: Council of the EU’s Amendments to the Commission’s Draft

Last weekend, an amended draft of the Regulation of the European Parliament and the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) was published by the British organization statewatch. The proposed changes regard Articles 1-10, 80 (a), 83 and several recitals. While some of them simply clarify the first draft, others – as for example the definition of the term “personal data” in Article 4 Subsection 1 – will have great effects on data protection in Germany. Continue reading

Disguised Advertising in the Wikipedia

Once information is entered into the Internet’s most popular encyclopedia Wikipedia it gains an immense potential of distribution. The high number of users and the easy accessibility in combination with the impression of neutrality an encyclopedia communicates make it highly desirable for companies to be positively depicted in articles about the company itself or its products.

The Higher Regional Court of Munich decided on May 10th, 2012 that positive display of a company’s products in a Wikipedia article that was amended by the director of the company constitutes disguised advertising and thus unfair competition as defined by Section 4 No. 3 UWG (the German Law Against the Unfair Competition). Continue reading

Injunctive relief under competition law

Data protection is big in Europe, especially in Germany. It is not possible to process personal data without a data protection law regulation the data processing. And while data protection laws are primarily supposed to protect the individual’s right to determine how his or her data is being processed, data protection has also become a commercial factor. On the one hand, companies are restricted in their ways of advertisement towards their customers. According to section 28 subsection 3 of the Federal Data Protection Act for example, advertisement is dependent on the individual customer’s consent. On the other hand, data protection compliance demands investments in the implementation of data protection standards within the company, for example to lay down the technical and organizational measures demanded by section 9 of the Federal Data Protection Act. Continue reading

Update: Second Proposal for a New Neighboring Right for Press Publishers Released

A while ago we reported that the German Federal Ministry of Justice (BMJ, Bundesjustizministerium) published a proposal for the implementation of a new neighboring right for press publishers.

Last Friday, a second draft for implementing such a new neighboring right into the German Copyright Code has been published by the Ministry. Compared to the first draft, the scope of the new neighboring right is far more limited: according to the new draft press publishers will only have a claim for remuneration against search engine companies. Other users like bloggers, companies other than press publishers or law firms would not need to obtain a license from the press publisher if they make available a press product.   Continue reading

Update: Liability for the child’s copyright infringement

Three weeks after the Higher Regional Court of Cologne (Oberlandesgericht, OLG Köln, decision of 06/04/2012 – 6 W 81/12 – we reported) found parents to be obliged to control what their children are doing online, even if the children are of age, the Regional Court of Hamburg (Landgericht Hamburg, LG Hamburg, decision of 06/21/2012 – 308 O 495/11) now held the parent’s obligation to control their grown children to be “unreasonable”. ”. According to the judges in Hamburg, parents can rely on their grown children knowing what they are doing online and knowing if they are infringing copyrights. Therefore, parents can neither be held responsible for not instructing their grown children how to “behave” online, nor for not checking up on what their children are doing online. The obligation to control children of age is found to contradict the “family’s bonds” in cases where there has not been prior reason to believe the child is infringing third party’s copyrights. In addition, a child of age cannot be expected to respect such parental control.

Liability for the spouse’s or child’s copyright infringement

Under German civil law copyright infringements through filesharing can basically be pursued in two ways. On the one hand, it is obviously possible to pursue claims against the person who actually makes the copyrighted material accessible via internet. This person may be the actual perpetrator of the copyright infringement or  someone who deliberately aids and abets the perpetrator committing the copyright infringement. On the other hand, right holders can also try to catch any person who – without being the actual infringer/ abettor –contributed to someone else’s copyright infringement in any way. The courts have repeatedly found such third parties responsible for copyright infringements (see, for example, Federal Supreme Court aka Bundesgerichtshof aka BGH, decision of 11/03/2004 – 1 ZR 304/01 and decision of 04/19/2007 – I ZR 35/04). Continue reading

German Federal Supreme Court on file hoster responsibility for third party content – “Rapidshare”

The German Federal Supreme Court (BGH) delivered yesterday a decision on file hosters‘ duties regarding copyright infringements committed by their users (more on the general topic of the responsibility for third party content here and here). The written opinion is not published yet, but here is a short summary of the German press release. Continue reading

YouTube v. GEMA Decision by Hamburg District Court

After having uploaded quite some posts about how liability for third party Internet content works in German law, and having done so in rather abstract terms (in part, admittedly, for shying away from translating dozens of pages of court decisions) here is a good example of how it works in practice. A colleague from Italy has thankfully posted an English translation of the YouTube v. GEMA decision of the Hamburg District Court of April 20, 2012 on his blog. Continue reading

Confiscation of Facebook Accounts in Criminal Proceedings

Social networks enjoy great popularity among online users. In Germany, more than 50 percent of all users surf on social networks on a weekly basis. In more than 50 percent the social network of choice is Facebook. But Facebook not only has the highest amount of users. They are also the most active, show the highest rate of general online activity (e.g. online shopping) and thus have the highest e-commerce-potential. Therefore, there has not been a way around Facebook for online shops for quite some time (more statistics on Facebook can be found here).

Now, there no longer seems to be a way around Facebook for state institutions, especially law enforcement agencies, neither.

Continue reading

Liability for Third Party (Internet) Content under German Law

One of the core problems of German Internet law today is the question of whether, and, if yes, under which conditions, Internet providers of all kinds can be held liable for content published by their users (or embedded by them). The issue arises for content communities (think YouTube), Internet forums, blogs (thing embedded content and user comments), wikis, social networking sites (you know who), but poses the same questions for “generic” host providers or sharehosters (I hardly dare write the word). Continue reading

Proposal for a New Neighboring Right for Press Publishers

The German Federal Ministry of Justice has published the long-awaited proposal for the implementation of a new neighboring right for press publishers. According to the reason given for the draft, press publishers will be granted the neighboring right in order to ease their lives in our digital times (by way of making sure that they receive a compensation for the specific work that they do).

For more than three years, press publishers have lobbied for a new IPR as a prerequisite to maintain quality journalism in the digital age. As was to be expected, the request has been quite heavily criticized by renowned scholars, the German industry and interest groups like IGEL (initiative against a neighboring right for press publishers) – with quite a notable list of supporters. The most notable opponent of such a new right (and main target of the press publishers) is Google, aka the usual suspect.

From the point of view of the press publishers who want and need to be able to gain noteworthy profits from their online press publications, Google’s business model unjustly exploits their content and publications. News aggregators like Google News are said to be a prime example of the internet age’s free riding business models massively harming the press publishers as advertising budgets are not spent where the content comes from. On the other hand, a neighboring right that will protect an individual sentence or a few words taken from an article would obviously be substantially cutting into freedoms that most Internet users have become accustomed to. Continue reading

No liability for third party content embedded via RSS-feed unless made aware of infringement

With judgment dated 27 March 2012 the German Federal Court of Justice (Bundesgerichtshof, BGH) held that the provider of an information portal who puts news online that may easily be detected as third party content – in this case: RSS-feeds – is  generally not required to check the articles with regard to potential rights infringements prior to publishing them.

Once the provider of an information portal has been made aware of an infringement of the personality right by the person affected the provider may be held liable to prevent such infringements in the future.

The reasons of the BGH’s decision dated are now available in German.  Continue reading

„Implied Consent“ to Cookies Being Set Suffices in the UK

Contrary to what had been the understanding before, the ICO in its capacity as data privacy watchdog in the UK has now declared in his guidance (download it here) that implied consent – if actually given – is just as valid a form of consent as explicit consent. That is not to say that website owners can simply continue to as before. When you read through the ICO’s advice on how implied consent may be brought about, it becomes quite clear that there really is not much difference from what the website owner must do to obtain explicit consent. Continue reading