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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
The COVID-19 pandemic has hit the brand ambassador and influencer industry in different ways. Social media engagement is up. Screen times have increased. Advertising campaigns of brand ambassadors for organizations and influencers might have been adjusted. Self-quarantining audiences have different demands. With the strong trust from their followers, influencers on social media channels such as
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 April 1, 2020, Germany’s federal government published a new draft bill to amend the German Hate Speech Act (Netzwerkdurchsetzungsgesetz – “NetzDG”; see also our earlier blog of October 2, 2017). The draft bill (“Bill”) is available in German here.
The Bill will introduce a number of improvements for users of social networks. It will also supplement the amendments to the NetzDG proposed already on February 19, 2020 in the Draft Bill to Combat Right-wing Extremism and Hate Crime (Gesetzentwurf zur Bekämpfung des Rechtsextremismus und der Hasskriminalität; more information is available in German here). In particular, platform providers will need to arrange for more user-friendly notification procedures, and also establish and maintain procedures that enable users to object to the deletion of comments they have made and have their comments reposted on the platform.Continue Reading German government introduces new bill to amend Germany’s Hate Speech Act, establishing new requirements for social networks and video-sharing platforms
On February 13, 2020, the German Federal Ministry of Justice and Consumer Protection (BMJV) published a proposal to soften the regulatory requirements for influencers for labeling their posts as advertising (Proposal). Under the Proposal, statements posted on social media about products for which no consideration was given – either in the form of monetary compensation
In its judgment of 1 October 2019, the European Court of Justice (ECJ) decided on cookie consent requirements under the General Data Protection Regulation 2016/679/EU (GDPR) and the Cookie Directive 2002/58/EC (Cookie Directive) (Case C-673/17, Planet49 GmbH v. Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.V. (the Judgment)).
The ECJ set clear requirements on what cookie consent must look like. However, the requirements for when websites must ask for cookie consent may vary from one EU member state to another as some member states, such as Germany, have not implemented the Cookie Directive and the Judgment, therefore, does not apply directly.
As a rule of thumb, it can be said that, at minimum, websites must ask for cookie consent for all cookies other than cookies that are technically required to operate the website or to provide the website service to the user. In other words, tracking, marketing and analytics cookies may only be used with explicit, clear, informed (Art. 13 GDPR) and prior consent.
Background
The case involved a promotional lottery, which was presented with two checkboxes:
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
Procedural laws and principles contain a clear concept regarding which party must present and prove what information in court proceedings. Claimants in employment proceedings currently try to use the right to access of data subjects under Article 15 GDPR to shake this concept up.
Judgment of the Higher Labour Court of Baden-Württemberg
On 20 December 2018, the Higher Labour Court of Baden-Württemberg (Landesarbeitsgericht Baden-Wuerttemberg – “LAG”) had to decide on the scope and exceptions of the data subjects’ access right (docket no. 17 Ca 4075/17). The decision was part of a lawsuit against unfair dismissal, made by a former employee against their former employer.
The LAG acknowledged the rights to obtain (i) general information about the employees’ personal data processed by the employer (Article 15(1) GDPR) as well as (ii) a copy of that data (Article 15(3) GDPR). According to the LAG, the copy under Article 15(3) GDPR comprises any of the employee’s personal data processed, including any correspondence, as well as performance and conduct data, even if such personal data was not stored in the employee’s employment file.
In the case at issue, the employer conducted internal investigations regarding operational misconduct of its employees and guaranteed its whistleblowers not to disclose their identity. It was, thus, crucial if the access right under Article 15(3) GDPR was restricted based on the rights and freedoms of others (Article 15(4) GDPR). The LAG supports the view that it may constitute a legitimate interest in the secrecy of the source of information if the employer has assured anonymity to its whistleblowers. However, the LAG emphasises that Article 15(4) GDPR may restrict the access request only to the extent that this is necessary to protect third parties’ secrecy interests, subject to balancing of interests test. The LAG took the view that it is not sufficient to make a general reference to the need for protection of whistleblowers. Instead, the LAG requires that the employer names the particular personal data of the employee to which the alleged third parties’ secrecy interests refer. The LAG held that it is necessary to name the related facts, the incident, the topic in terms of time and locality, and the acting persons in that regard.Continue Reading How (not) to restrict GDPR access requests in employment proceedings – German court establishes high threshold
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: