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
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
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.
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.
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
In March 2012 the German Federal Legislator adopted several comsumer protection statutes that will have considerable impact on B2C e- and m-commerce business activities in Germany, implementing, in particular, Art. 8 (2) of Directive 2011/83/EU. The new law applies to any contractural transaction that is entered into via electronic means of communication and leads to payment obligations for the consumer, i.e. any purchase of a book in an online shop, any subscription of content services made as an in app purchase, as well as any other such contract unless it is free of charge. Continue reading
It has been reported that today Mr. Peter Schaar, head of the Federal Commissioner for Data Protection and Freedom of Information, announced at the Data Protection Congress 2012 that is currently held in Berlin that the EU “Cookie Directive” – which has not yet been implemented into German law – has EU law’s “direct effect” (also known as “immediate applicability”), making Art 5 (3) of the Directive directly applicable and effective under German law. He (as reported) added that therefore Art. 5 (3) of the Directive can be applied and enforced by the German data protection authorities in their day to day business. Ooops! Continue reading
As reported by DataGuidance, the UK Information Commissioner the enforcement of the “cookie law” will be “pragmatic and realistic” in the UK. “Pragmatic” and realistic”: Sounds good doesn’t it? Doesn’t sound very German, though, does it? As explained here, the cookie situation in Germany is still unresolved, largely due to the (my take on the matter) inability to come up with a draft for transforming the Directive’s into German law that provides for a workable solution the problem. It seems that at least the current government feels uncomfortable to pass a law the wording of which would effectively rule out a good portion of how websites work today.
Even more interestingly, in the same DataGuidance post they report that the French Data Protection Authority (CNIL) will exempt analytics cookies from the new requirement of prior consent. Continue reading
As you may have heard, as per the self-appointedly competent data protection authorities in Germany you may not set up and maintain a Facebook fan page, nor may you embed Facebook plugins into to your web pages (it’s true, read here, here, here, and here). If you do, you’re acting in violation of German data protection law. Continue reading
Framing is a convenient tool for journalists and readers alike. Putting a frame around a wide variety of content makes life easier for many jobs, passions and commercial interests. However, does framing provide any legal pitfalls?
Let’s first draw a picture of framing: What’s framing exactly? Other than setting an ordinary link to content of a third party’s website, in the case of framing the content is integrated via a link (“embedded” – e.g. as an iframe – or “inline link”) onto the very website which is called up. Via this link the third party’s content is displayed without any further click and without change of the URL in the browsers address bar in a so called frame of the same screen window whilst being stored on the third party’s server.
And legally? May a frame provider be held liable for a copright infringement? He may, but not necessarily: The Cologne Court of Appeal (Oberlandesgericht) recently held that a frame provider embedding content in the way described above does not commit a copyright infringement. Continue reading
When you’re asked to localize contracts coming from a U.S. legal background so that they function under German law two very different legal worlds collide. Things just work differently over here. And things word differently over there. We draft our contracts differently, we use different language (which is why simply having a translator go over your documents just won’t cut it, much less asking uncle Google), our concept of selling and licensing software is nowhere near the “this software is licensed not sold” was of thinking, and so on and so forth. Nothing wrong with that, but it provides for some hard going sometimes.
One of the more peculiar concepts of German contract law is that of or our “Law on General Terms and Conditions” (Google Translator tells me that in English that should be “Legal terms and conditions of” which isn’t even close, so there…). In a nutshell, the idea is this: If, as a company, you work with standard contracts, i.e. a set of contractual documents that you have in your drawer all drafted to best fit your particular interests and ready to pull out for every new customer you want to do business with, the terms and conditions of those contractual documents are subject to the so-called “content control” (we Germans like control, as is well known). Continue reading
As we are quickly moving towards Germany’s 1st anniversary of non-compliance with the infamous “EU Cookie Directive“, one would expect the legislator to really make a push to get something on paper, right? Well, not so. In fact, there isn’t even a legislative silver lining anywhere to be seen. We have witnessed one draft of a change to the “Telemedia Act” (the place where any transforming the EU’s wisdom into German law would take place) submitted by the federal state of Hessen last year that no one has really talked much about, and one draft submitted by the current opposition in the Bundestag that has now been rebuffed on committee level without before even getting a proper hearing in parliament – without spoiling us by publishing any reasons for the government’s stance, sadly. That said, that’s all good news, really. Continue reading
Germany’s Federal Constitutional Court has just reminded the Higher Regional Court of Cologne (one of the courts that will hold you liable for just about anything that third parties, i.e. your children, your neighbors, the guests of your hotel etc., might do using your WLAN) that, contrary to what the Cologne Court assumed, not all legal questions have been answered. The Cologne Court had refused a request by the defendant to be granted a second appeal to the Federal Supreme Court because it assumed (for reasons no one can really understand) that the Supreme Court has already decided on the relevant legal issue. Continue reading
As reported by heise, the Senate of Berlin (in its capacity as government of the Federal State of Berlin) will, it has been announced, put forward a motion in the Federal Council of Gemany (the second “half” of the federal parliamentary instutions next to the Bundestag) aiming at rewriting – or actually writing for the fist time – the law on the liability of those who operate WLANs for unlawful acts commited by other people through those WLANs. If successful, the motion could finally put an end to, or at least regulate by democratic means, some of the rather strange views that the German courts have taken over the past ten odd years regarding this particular “problem” of the Internet age. Continue reading
Now that the Google and its fellow search engines are possibly heading for a new form of liability in the UK, what’s life like for search engine providers in Germany? Well, as usual, it’s complicated.
The question of Google’s responsibility for what one may find when searching for a particular set of terms has been dealt with by a variety of court decisions on appeal court level (our “Oberlandesgerichte”) and even once by the German Supreme Court (Bundesgerichtshof). Interestingly, though, the problem that one would think is the most common problem that people have with the search engine phenomenon has not really been dealt with by the courts. We know that Google is generally allowed to display thumbnails of copyrighted images on its image search site. We have been informed that Google is not liable for the “snippets” that appear as a result of one’s search. But we don’t know what Google is required to do (if anything) when being informed of a clear violation of someone’s, say, protected private sphere committed on the internet and spread through tools like Google’s search engine. Continue reading