In a late night session on 28 June 2019, the German Parliament (Bundestag) passed the Second GDPR Implementation Act (2. Datenschutz-Anpassungs-und-Umsetzungsgesetz EU – 2. DSAnpUG-EU; the Act). The Act is available online in German here and here. For more information on the First German GDPR Implementation Act read our
They are the stars of the young generation, brand ambassadors for organizations and leaders on social media: influencers. With their strong presence on social media channels such as Facebook, Instagram or Twitter, influencers have a power that pays off. Thousands of users follow the day-to-day posts of their role models. Influencers are becoming increasingly important…
Recently, a draft for the 3rd Amendment to the German Interstate Treaty on Gambling (Staatsvertrag zum Glücksspielwesen in Deutschland – “GlueStV”) has been published (“3rd Amendment”). The draft for the 3rd Amendment is available in German here.
Proposed changes under the draft for the 3rd Amendment
The key changes under the proposed 3rd Amendment are as follows:
- The current version of the GlueStV contains a rather restrictive quota for governmental sports betting licenses in Germany. According thereto, only 20 licenses are available for all of Germany and only for a certain experimental period expiring on 30 June 2019. This 20-licenses-quota is currently subject to pending court proceedings before German administrative courts which led to a de facto suspension of the quota. A key change under the 3rd Amendment is the intended complete removal of the 20-licenses-quota for the deration of the experimental period.
- At the same time, the experimental period shall be extended until 30 June 2021. A further consecutive extension until 30 June 2024 may be possible.
- The 3rd Amendment to the GlueStV shall enter into force on 1 January 2020.
Recently, the German media regulators, the State Media Authorities (Landesmedienanstalten), issued a joint guidance paper on marking adverts on social media (Leitfaden der Medienanstalten, Werbekennzeichnung bei Social Media-Angeboten; “Guidance Paper”). The Guidance Paper replaces the State Media Authorities’ earlier FAQs. It is intended to help organisations and individuals to…
On 24 August 2018, the Munich Court of Appeal (“Court”) issued a preliminary injunction against Facebook that prohibits Facebook from deleting a certain user’s post (docket no. 18 W 1294/18).
Facts of the case
The claimant is a Facebook user who had taken part in a discussion on the Facebook page of a renowned German news journal on Austria’s announcement of border controls. In the course of a controversial discussion, in particular with another Facebook user, the claimant posted a quotation of the German poet Wilhelm Busch, combined with a provocative statement against another Facebook user:
|Original German wording
|English convenience translation:
|“… Gar sehr verzwickt ist diese Welt, mich wundert’s daß sie wem gefällt. Wilhelm Busch (1832–1908)
Wusste bereits Wilhelm Busch 1832 zu sagen:-D Ich kann mich argumentativ leider nicht mehr mit Ihnen messen, Sie sind unbewaffnet und das wäre nicht besonders fair von mir.”
|“… This world is very tricky, I wonder who likes it. Wilhelm Busch (1832–1908)
Wilhelm Busch already knew in 1832 to say :-D Unfortunately, I can no longer compete with you argumentatively, you are unarmed and that wouldn’t be particularly fair of me.”
Facebook deleted the claimant’s post.
Continue Reading Munich Court of Appeal prohibits Facebook from deleting a post that does not fall under the German Hate Speech Act
The German data protection authorities (German DPAs) have jointly released a list of processing activities (List) that are subject to a data protection impact assessment (DPIA). The List contains 16 examples.
What is a DPIA?
DPIAs shall help identifying, assessing and minimising the data protection risks of a project in which personal data are processed. Especially broader risks to the rights and freedoms of individuals, resulting from the processing, shall be assessed and mitigated by appropriate countermeasures.
DPIAs also support the General Data Protection Regulation’s (GDPR) accountability principle, helping organisations to prove that they have taken appropriate measures as required by GDPR, so that a compliant processing is possible.
Art. 35 GDPR provides that a DPIA is generally required where the processing of personal data, in particular when using new technologies, is likely to result in a high risk to the rights and freedoms of natural persons. The GDPR lists three examples where a DPIA is required:
- Systematic and extensive profiling
- Processing of special categories of personal data or criminal offence data on a large scale
- Systematic monitoring of publicly accessible places on a large scale
Art. 35 (4) GDPR calls on supervisory authorities to release lists that further specify those cases where a DPIA is mandatory.Continue Reading When do organisations need to carry out a data protection impact assessment? German authorities provide guidance
On 7 August 2018, the Court of Justice of the European Union (“CJEU”) has released another judgment (surprisingly its first copyright judgment of 2018) on the interpretation of the right of communication to the public (case no. C-161/17 – “Judgment”). The CJEU held that the unauthorised re-posting of copyright protected works may constitute an act of communication to the public under Article 3(1) of Directive 2001/29/EC (InfoSoc Directive).
The fact pattern was very specific. A copyright protected photograph of the city of Cordoba was uploaded to an online travel portal with the consent of the photographer. The photo was freely accessible without any restrictive measures preventing it from being downloaded. A student downloaded the photograph and used it for a written assignment, which was then uploaded to the school’s website.
The photographer brought the underlying main proceedings before the German courts claiming copyright infringement. The German Federal Court of Justice (Bundesgerichtshof) referred the case to the CJEU and asked whether the posting on one website of a photograph that has been previously published without restriction and with the consent of the right holder on another website qualifies as communication to the public.
Opinion of the Advocate General
The Advocate General Sánchez-Bordona (“AG”) took the view that the use of the photograph in this case does not infringe the right of communication to the public. He argued that both the school’s website and the online travel portal addressed the same general internet public. Considering that the original upload was accessible without technical restrictions or a copyright notice, the AG concluded that internet users could assume the right holder does not object to further uploads of the work.
The AG suggested a ‘notice and takedown’ procedure in which right holders have to actively opt out of the use of protected works by means of downloading and uploading.Continue Reading CJEU decides on re-posting of protected content
In a judgment of 18 June 2018, case 24 U 146/17, the Berlin Court of Appeals (Kammergericht Berlin – Court of Appeals) held that collecting societies shall grant the right of use of their picture inventory as thumbnails even if these pictures can be ‘framed’ by third parties and the prospective licensee does not commit to prevent this use by technical means. This case will most likely now go to Germany’s Federal Supreme Court of Justice (Bundesgerichtshof – BGH).
The judgment is based on a legal conflict that occurred in 2013. A German collecting society and its prospective licensee negotiated the granting of the right to use works of visual arts on the licensee’s website as well as websites of the licensee’s partners. In 2014, when a license agreement was almost concluded, the collecting society refused to grant the licensee rights to use because of an earlier judgment of the Court of Justice of the European Union (CJEU) on framing (CJEU, BestWater International, judgment of 21 October 2014, case C-348/13). This judgment stated that framing a protected work that was made available on a publicly and freely accessible website did not constitute communication to the public under European copyright law.
The collecting society did not enter into the agreement as the licensee did not agree to provide appropriate technical measures to protect against framing on its website. The collecting society argued that authors shall be protected against the framing of copyrighted pictures on third parties’ websites without remuneration.
The licensee brought an action for a declaratory judgment in front of the Berlin Regional Court (Landgericht Berlin, 15 July 2017, 15 U 251/16) in 2016 on whether collecting societies may impose the obligation that licensees implement technical measures to prevent framing. The Berlin Regional Court dismissed the action as inadmissible in the first instance.Continue Reading Court of Appeals Berlin decides on the obligation to provide technical protection against framing
In a judgment of 17 May 2018, case no. 6 U 3815/17 (“Judgment”), the Court of Appeal Munich (Oberlandesgericht München – “Court of Appeal”) held that online retailers are required to indicate a precise delivery time on their website where consumers purchase products. A ‘coming soon’ notice is insufficient, even where the relevant product has not yet been released. The Judgment was published on 9 July 2018 by the German consumer protection association Verbraucherzentrale Nordrhein-Westfalen, which had initiated the court proceedings (“Plaintiff”). The Plaintiff’s accompanying press release of 9 July 2018 can be found here (in the German language).
In 2016, the Plaintiff initiated court proceedings against a major German online retailer (“Defendant”). The Defendant had offered on its website to customers a new smartphone that had not yet been released by the manufacturer, placing the following notice on its website: “The item will be available soon. Secure your device now!” (Original German wording: “Der Artikel ist bald verfügbar. Sichern Sie sich jetzt Ihr Exemplar!”).
In its first instance judgment of 17 October 2017, case no. 33 O 20488/16 (“First Instance Judgment”), the District Court Munich I (Landgericht München I) held that the Defendant was in breach of its statutory information obligations on distance selling contracts under the German Civil Code (Bürgerliches Gesetzbuch – “BGB”).Continue Reading German court rules that online retailers must specify the delivery date even for ‘coming soon’ B2C pre-release orders
On 12 July 2018, the German Federal Supreme Court (Bundesgerichtshof – “BGH”) ruled that a Facebook user account passes to the user’s heirs (Case no. III ZR 183/17).
This is the first time the BGH has had the opportunity to deal with the provisions of the new EU General Data Protection Regulation 2016/679 (“GDPR”).
While the full judgment has not yet been published, the BGH’s press release of the same date gives some insight into the BGH’s considerations:
Continue Reading German Federal Supreme Court: Facebook account passes to heirs