Photo of Dr. Philipp Süss

In a recent decision of December 19, 2021, case no. 1 BvR 1073/20 (published with an official press release dated February 2, 2022), the German Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) set aside several judgments of the Berlin civil courts. The Berlin civil courts had denied the plaintiff, who alleges she was exposed to hate speech on a social network, the right to demand from the operator of the social network access to customer data, i.e., the full names of the users who had posted the content that the plaintiff considered to be hate speech. In the view of the BVerfG, the Berlin courts had failed to properly balance the parties’ interests and thereby had violated the plaintiff’s fundamental rights.
Continue Reading Germany’s Federal Constitutional Court provides guidance for assessing claims against hate speech on social media

The Interstate Treaty on Media (Medienstaatsvertrag – MStV) has finally been ratified by all 16 German federal states and can now enter into force. On 28 October 2020, the Parliament of Mecklenburg-Vorpommern – the last German federal state to ratify the MStV – adopted the Act ratifying the MStV. Ratification of the MStV by all German federal states is a precondition for the MStV entering into force.

The MStV is the German implementation of the EU Audiovisual Media Services Directive 2010/13/EU, as amended by Directive 2018/1808/EU.

The MStV replaces the current Interstate Treaty on Broadcasting (Rundfunkstaatsvertrag – RStV) and is considered an important milestone in media policy. It is an essential part of the national efforts to modernise the media landscape and to make the German legislative framework fit for the next level of digital media. Consequently, the MStV focuses on services beyond the category of broadcasting, i.e., telemedia services, as well as on broadcasting. With media intermediaries, media platforms, user interfaces and video-sharing-services, the MStV applies to many players on the media market.
Continue Reading Germany’s next steps in digitization: Finally, the new Interstate Treaty on Media has been ratified by all German federal states

On May 27, 2020, the German Federal Constitutional Court invalidated section 113 of the German Telecommunications Act (TKG) and several accompanying federal law provisions for non-compliance with the German Constitution (case nos. 1 BvR 1873/13 and 1 BvR 2618/13). On July 17, 2020, the Federal Constitutional Court published the fully reasoned judgment as well as a press release outlining the Federal Constitutional Court’s key considerations (press release no. 61/2020 of July 17, 2020, available in German and English).

Background

Section 113 TKG enables German security authorities to request from providers of telecommunications services access to personal customer data linked to the conclusion or performance of a telecommunication services contract (Subscriber Data). Subscriber Data includes information such as a subscriber’s name, date of birth, telephone number, address, bank details, login data, or an IP-address assigned at a certain point of time. By contrast, data relating to the use of telecommunications services (so-called traffic data) is not covered by section 113 TKG.
Continue Reading Highest German Court invalidates Section 113 of the German Telecommunications Act and abandons service providers’ obligation to grant authorities access to subscriber data

On 9 September 2019, the German Federal Ministry of Economic Cooperation and Development (Bundesministerium für wirtschaftliche Zusammenarbeit und Entwicklung – BMZ) introduced a new, state-regulated environmental label for “Green Button” (Grüner Knopf) certified textiles with a press release. The BMZ also launched the official Green Button website, which is available in German at http://www.gruener-knopf.de/.

In a nutshell

The Green Button is a logo that serves as evidence that the textile products concerned were manufactured and placed on the market in a socially and environmentally sustainable manner. The state is responsible for determining the requirements for Green Button certification.

The Green Button is intended to help consumers and public procurement agencies in identifying such textile products. The logo can be attached directly to certified textile products to demonstrate that the products meet the demanding social and environmental requirements.

Continue Reading Germany launches new, state-approved label for environmentally certified “Green Button” textiles (Grüner Knopf)

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.


Continue Reading German Interstate Treaty on Gambling under revision: Additional sports betting licenses may be available soon

The Bavarian Data Protection Authority (‘Bavarian DPA’) audited major Bavarian websites for their use of tracking tools on Safer Internet Day. It calls its findings “desolate”. None of the tracking tools were implemented in a compliant manner.

Audit by the Bavarian DPA

Tracking and the requirements for using cookies have been a highly debated topic by the EU data protection authorities since last spring. The Conference of German Data Protection Authorities released a position paper on 26 April 2018, stating that tracking and profiling cookies require opt-in consent (‘Position Paper’; read more on the Position Paper in our blog here and find more background on cookies under GDPR in the German-language videos here).

The Bavarian DPA audited 40 Bavarian websites. In a summary report (‘Summary Report’, available here), the Bavarian DPA stated that all websites that were reviewed used thirdparty tracking tools, but none was implemented in compliance with data protection law. The websites tested relate to the following industries: online shops, sports, insurances, banks, media, cars and houses.

The Bavarian DPA emphasised its audit on transparency and consent.

Continue Reading German supervisory authority audited 40 websites on the use of tracking tools – and none of them was compliant

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 (18321908)

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

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).

Background

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