Patrick Breyer v Federal Republic of Germany: Dynamic IP addresses = Personal Data? And Is German Data Protection Law too Restrictive?

Today, Attorney General Campos Sánchez-Bordona has delivered his Opinion in the Patrick Breyer v Federal Republic of Germany case before the ECJ (C-582/14; you can find the Opinion here in just about any language except English)).

We recall: The Bundesgerichshof (the highest court in Germany for all civil and criminal matters) submitted to the ECJ the following two questions:

“Must Article 2(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data 1  — the Data Protection Directive — be interpreted as meaning that an Internet Protocol address (IP address) which a service provider stores when his website is accessed already constitutes personal data for the service provider if a third party (an access provider) has the additional knowledge required in order to identify the data subject?”

“Does Article 7(f) of the Data Protection Directive preclude a provision in national law under which a service provider may collect and use a user’s personal data without his consent only to the extent necessary in order to facilitate, and charge for, the specific use of the telemedium by the user concerned, and under which the purpose of ensuring the general operability of the telemedium cannot justify use of the data beyond the end of the particular use of the telemedium?”

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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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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

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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Are Dynamic IP-Addresses “Personal Data” As Defined By the EU Data Protection Directive?

And if so; May they be recorded? – The German Federal Court of Justice (BGH) in its decision dated October 28, 2014, court ref. VI ZR 135/13 referred to the to the European Court of Justice (ECJ) for a preliminary ruling regarding the interpretation of the EU Data Protection Directive concerning the definition of the term “personal data” therein and recording of dynamic IP-addresses. Continue reading

The Title of an App Can Be Protected as a Work Title under German Trademark Law – If it Is Not Merely Descriptive

The Higher Regional Court of Cologne (OLG Köln) held in its decision (court ref. 6 U 205/13) dated September 5, 2014 that the title of a mobile app can enjoy protection against similar titles for similar services. However, the claimant who is the operator of a German weather information website that runs under the domain <wetter.de> and an app with identical content also titled <wetter.de> cannot prohibit the use of the title <wetter DE> or <wetter-de> for a similar weather app by the defendant. Continue reading

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

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

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

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

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

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: 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.