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Dr. Philipp Süss

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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

According to a press release dated 26 February 2018, the Administrative Court of Appeal Munster (Oberverwaltungsgericht Münster) asked the European Court of Justice (ECJ) for a preliminary ruling on the question whether Over-the-Top (OTT) services shall be caught by the European regulatory framework on telecommunications services.

Background

By way of administrative orders, the German Federal Network Authority (Bundesnetzagentur – BNetzA) enforced a specific notification obligation pursuant to section 6 of the German Telecommunications Act (Telekommunikationsgesetz – TKG), which applies to operators of telecommunications services, against Google in relation to its free-of-charge Gmail service. Google took the view that Gmail would not qualify as “operation of telecommunication services” in the meaning of the TKG and, therefore, Google had not notified the Gmail service with the BNetzA.

Google challenged the administrative orders by legal action before the Administrative Court Cologne (Verwaltungsgericht Köln). Google argued that the transmission of emails through the Internet is technically not under Google’s control since it is conducted by access providers and not by Google. The Administrative Court Cologne regarded these arguments as irrelevant. By contrast, the transmission services provided by the access providers involved shall be attributed to Google. As a consequence, the Administrative Court Cologne found that Google would qualify as “operator” of the whole communication process. In its judgment of 11 November 2015, case no. 21 K 450/15, the Administrative Court Cologne dismissed Google’s action. As a consequence, Gmail would indeed be covered by the notification obligation under section 6 TKG.Continue Reading Are OTT services telecommunications services? German court asks European Court of Justice for preliminary ruling | Gmail Case

Addressing the detection of and removal of illegal content from online platforms represents an urgent challenge for the digital society today. However, so far, there is no harmonised and coherent approach across the European Union. On 28 September 2017, the European Commission (“Commission”) published a communication titled „Tackling Illegal Content Online – Towards an enhanced responsibility of online platforms” (“Communication”). The Commission calls for a more aligned approach as it would make the fight against illegal content more effective. An aligned approach would also benefit the development of the Digital Single Market. The Commission stresses that online platforms carry a significant societal responsibility and shall, therefore, decisively step up their actions to address this problem.

Scope of the Communication

The Communication does not as such change the existing legal framework. It rather lays down a set of non-binding guidelines and principles for online platforms to step up the fight against illegal content online in cooperation with national authorities, Member States, and other relevant stakeholders: “It aims to facilitate and intensify the implementation of good practices for preventing, detecting, removing and disabling access to illegal content so as to ensure the effective removal of illegal content, increased transparency and the protection of fundamental rights online. It also aims to provide clarifications to platforms on their liability when they take proactive steps to detect, remove or disable access to illegal content (the so-called “Good Samarian” actions).”

The Communication does not only target the detection and removal of illegal content; but it also takes into account issues arising from removal of legal content (“Over-Removal”), which may impact the freedom of expression and media pluralism. Therefore, the Commission calls for adequate safeguards which shall properly prevent Over-Removal.
Continue Reading European Commission calls for enhanced responsibility of online platforms for illegal content

According to a press release of the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband; ‘vzbv’) dated 19 July 2017, the German Federal Supreme Court (‘FSC’) issued a judgment that held it is unreasonable for consumers if the only payment method offered free of charge is ‘Sofortüberweisung’ (FSC, judgment of 18 July 2017, case no. KZR 39/16; not yet published). This means that at least one customary means of payment other than ‘Sofortüberweisung’ needs to be offered to the consumer free of charge.

At the same time, the FSC clarified that the business model of ‘Sofortüberweisung’ is permitted.

Underlying case

vzbv sued the provider of a German online flight booking portal (‘Booking Portal’). On the Booking Portal, only the payment method ‘Sofortüberweisung’ was free of charge. A consumer who selected to pay via other means of payment, such as credit cards, was charged with an additional credit card fee. This concept is used by a significant number of online shops and platforms that offer their goods and services to German consumers.

vzbv’ legal action aimed to secure a permanent injunction against the Booking Portal, to prohibit it from offering only one payment method free of charge, namely, the payment initiation service ‘Sofortüberweisung’, which requires the consumer to provide their online banking PIN and a transaction number.

Although the District Court in Frankfurt am Main made an adverse decision against the Booking Portal, the Court of Appeal in Frankfurt am Main dismissed vzbv’s action, stressing that ‘Sofortüberweisung’ is a widespread means of payment. Now, finally, the FSC has upheld the first instance decision from the District Court in Frankfurt am Main.Continue Reading German Federal Supreme Court: ‘Sofortüberweisung’ must not be the only free-of-charge payment method in B2C contracts

On 5 April 2017, the German Federal Minister of Justice’s new bill aimed at improving enforcement of rights in social networks (Entwurf eines Gesetzes zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken; Netzwerkdurchsetzungsgesetz – NetzDG, the Bill; see our previous blog) has, in a slightly revised version, been adopted by the Federal…

On 14 March 2017, the German Federal Minister of Justice, Heiko Maas, announced a new bill aimed at improving the application of the law to social networks (Entwurf eines Gesetzes zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken; Netzwerkdurchsetzungsgesetz – NetzDG, the Bill). The Bill strengthens the rights of individuals who are affected…

On 3 March 2017, the Bavarian Data Protection Authority (Bayerisches Landesamt für Datenschutzaufsicht – “DPA”) issued a 160-page 7th activity report (Tätigkeitsbericht), covering years 2015 and 2016. The activity report has been accompanied by a press release of the same date.

Background

In Germany, Data Protection Authorities are obliged…

According to a press release of the Bavarian Data Protection Authority dated 3 November 2016 (“Press Release”), 10 German Data Protection Authorities (“DPAs”) have commenced a coordinated written audit and assessment of international data transfers, i.e., transfers to non-EU countries. Five hundred German companies will be asked to complete a comprehensive…

According to a press release of 28 October 2016, the Prime Minister Conference agreed to repeal the limitation to 20 licenses for private sports betting providers. Further, the German gambling regulators are invited to take appropriate enforcement measures on illegal gambling, in particular, online-gambling.

Background

In 2012, the new Interstate Treaty on Gambling (Glücksspielstaatsvertrag…