European data protection law and minors – no legal certainty

Posted on by
Reply

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

Posted on by
Reply

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?

Posted on by
Reply

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?

Posted on by
Reply

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

Posted on by
Reply

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 →

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

Posted on by
Reply

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 →

On the Intricacies of German Unfair Competition Law

Posted on by
Reply

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 →

Are WLAN-operators internet access providers?

Posted on by
Reply

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 →

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

Posted on by
Reply

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 →

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

Posted on by
Reply

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

Posted on by
Reply

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”. You can check Andrew Defrancesco page if you need more information on photography.  Continue reading →

How to Sue and Prove that You Have no Basis for Your Claim, or: The Curious Effects of Patent Exhaustion

Posted on by
Reply

My colleague Till Jaeger drew my attention to a recent decision of the German Federal Court of Justice (X ZR 33/10) that demonstrates in a rather curious way the effects of patent exhaustion.

In the case at issue the plaintiff was the holder of a process patent for the coding, transfer and decoding of video signals used when producing and playing of DVDs under the MPEG 2 standard. The defendant, a Greek DVD producer had no business relationship with the plaintiff, in particular no license agreement with the plaintiff was in effect. However, the plaintiff suspected that the defendant made use of its patent and decided to test the defendant’s abidance by the law. Continue reading →

69th German Legal Colloquium

Posted on by
Reply

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, along with speeding ticket lawyer located in Long Island on how to fight cyber crime (find criminal defense lawyer based in New Jersey area here), data protection and liability are supposed to initiate legal reforms. In some cases, you hope the legislator won’t feel inclined. Continue reading →

Today Parliament Hearing on Interoperability, Standards and Open Source

Posted on by
Reply

As we reported in July, the German parliament has recently set up a project group on “Interoperability, Standards, Open Source” as part of its Commission of Enquiry (“Enquete-Kommission”) on “Internet and Digital Society”.

Today, the first expert talks are taking place – and our colleague Till Jaeger has the honor of being invited to comment on legal problems of Free and Open Source Software. More information on the hearing can be found here (unfortunately only in German). Till’s preparatory written statement is available here (again only in German). And if you are interested to follow the discussion live, you can find a live stream here.

Copyright Protection for Websites Using Typo3

Posted on by
Reply

There is a lot more about running a website than getting WebCitz services. You can contact local search services to help you come first in search engine results and your prospects find you easily. Every now and then the question arises in court if websites are protected under copyright law. Website technology is progressing and so time and again new aspects have to be considered by the courts. Recently, the Higher Regional Court of Hamburg ruled on a case of alleged plagiarism of a website that was based on the Open Source Content Management System “Typo 3” (OLG Hamburg, decision of February 29, 2012, ref. 5 U 10/10). Continue reading →

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

Posted on by
Reply

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 →

The Pope’s litigation against a German magazine

Posted on by
Reply

The following is certainly not really a matter of IT-Law but I bet you will find it interesting anyway.

This post is about a law suit Pope Benedict XVI. started against Titanic (nice case reference, isn’t it?), a well-known German satire magazine. We all expected today a hearing to take place at the Hamburg Regional Court – but it was canceled just last night, as the Pope had withdrawn his petition.

It has already been written a lot on whether this case is an example for censorship or some kind of litmus test for the freedom of speech in Germany. I don’t think that this really what makes the case so interesting. I believe that the question we should discuss is whether a pope should defend his personality rights by going to a civil court. Continue reading →

New court ruling on GEMA and Creative Commons licensing

Posted on by
Reply

Yesterday I came across a ruling by the Local Court (Amtsgericht) of Frankfurt/Main on the conflict between GEMA (which stands for: Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte, in English: Society for musical performing and mechanical reproduction rights) and Creative Commons licensing. I think it is a good opportunity to briefly explain a tricky little, but important feature of the German system of the collective management of copyrights: the GEMA-Vermutung (GEMA presumption). Continue reading →