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German court rules that online retailers must specify the delivery date even for ‘coming soon’ B2C pre-release orders

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. … Continue Reading

Digital token ruled a security under the Howey Test, for now

With the plaintiffs’ bar setting its sights on initial coin offerings, a body of precedent will soon develop analyzing digital tokens under U.S. securities laws. Last week, United States Magistrate Judge Andrea M. Simonton began developing that body of law in Rensel v. Centra Tech, Inc., No. 17-CV-24500, 2018 BL 227097 (S.D. Fla. June 25, … Continue Reading

Supreme Court strikes physical presence requirement for sales tax, with big ramifications for the Internet economy

Reversing a 1992 precedent in Quill v. North Dakota, on June 21, 2018, the U.S. Supreme Court issued a decision in South Dakota v. Wayfair, Inc., holding that physical presence in a state is not necessary to require a remote seller to collect sales tax.  In many respects this decision sets the stage for states … Continue Reading

How big is the risk to operate Facebook fan pages in Germany?

On 5 June 2018, the Court of Justice of the European Union (CJEU) handed down its long-awaited Facebook fan page judgement (Case C-210/16), holding that the operator of a fan page on Facebook is jointly responsible with Facebook for processing the data of visitors to the page. Only a day later, the Conference of German … Continue Reading

Asserting the defense of lack of personal jurisdiction in privacy class actions

In the wake of the U.S. Supreme Court’s decision in Spokeo v. Robins, 136 S. Ct. 1540 (2016), there has been a plethora of litigation in privacy class actions over whether federal courts can exercise subject-matter jurisdiction over the asserted statutory or common law claims. However, in addition to considering whether a court has subject-matter … Continue Reading

Unregistered patent transactions will cost you

The findings from a recent UK Patents Court judgment have clarified the extent of litigation sanctions imposed when there is a failure to record a patent transaction at the Patent Office. The UK patents system may deprive a successful plaintiff of its entitlement to recover its full legal costs in these circumstances. This case will also affect … Continue Reading

Supreme Court drops hints about upcoming privacy decision in Carpenter

As previously reported, the Supreme Court on November 29 heard arguments in Carpenter v. United States, an important privacy case about the Fourth Amendment’s application to 127 days’ worth of a criminal suspect’s cell-site location information. While the Court has yet to decide the case, its decisions last week in Byrd v. United States and … Continue Reading

D.C. federal court rules that web scraping does not violate the CFAA and may be protected by the First Amendment

On March 30, 2018, a D.C. federal district court denied a motion to dismiss an ACLU case filed against the government to challenge the constitutionality of the Computer Fraud and Abuse Act (CFAA), which makes it a federal crime to access a computer in a manner that “exceeds authorized access.” Sandvig v. Sessions, No. 1:16-cv-01368, … Continue Reading

New Jersey Appellate Division allows some video surveillance claims to proceed, even though plaintiffs cannot identify themselves in the recovered recording

In a published decision, a unanimous panel of the Appellate Division rejected “the notion that plaintiffs – in alleging an invasion of privacy in an office building’s bathroom – could only claim the presence of a hidden recording device by demonstrating their images were actually captured.” Jaime Friedman et al. v. Teodoro Martinez et al., case … Continue Reading

Get your update on IT and data protection law in our newsletter

The Winter 2018 edition of the quarterly IT & Data Protection Newsletter by Reed Smith Germany has just been released. We cover new case law on marketing consent, cookie consent, the liability of platform providers, employee data protection, sales of address data and the right to be forgotten. The newsletter also includes multiple recommended reads … Continue Reading

German court issues important judgment on consent and transparency in Facebook case

The Regional Court of Berlin held in a judgment of 16 January 2018 (docket no. 16 O 341/15, German language version of the judgment available here) that Facebook’s default privacy settings and parts of their terms and conditions were invalid. This judgment provides important guidance on consent and transparency. Background The Federation of German Consumer … Continue Reading

Ninth Circuit calls common carrier exception “activity-based”

On February 26, 2018, an en banc federal appeals court held that the common carrier exception in the Federal Trade Commission (FTC) Act that preempts FTC jurisdiction is “activity-based” rather than “status-based” and therefore applies only to the extent an entity engages in common-carrier services. See FTC v. AT&T Mobility LLC, No. 15-16585, D.C. No. … Continue Reading

Are OTT services telecommunications services? German court asks European Court of Justice for preliminary ruling | Gmail Case

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 … Continue Reading

District judge in the SDNY: Embedding links to third-party web content is copyright infringement

Copyright holders have an exclusive right to display images and other works. For the last 10 years, news organizations and other website operators have relied on the Ninth Circuit’s opinion in Perfect 10, Inc. v. Amazon.com Inc., which established a bright-line server test for determining whether a website displayed a copy of an image, and … Continue Reading

D.C. Circuit finds dissemination, but not mere existence, of inaccurate information in government database satisfies Article III standing requirement post-Spokeo

“[I]f inaccurate information falls into a government database, does it make a sound?” Partly affirming summary judgment for the defendant in Owner-Operator Indep. Drivers Ass’n, v. DOT, No. 16-5355 (D.C. Cir. Jan. 12, 2018), the U.S. Court of Appeals for the D.C. Circuit answered its own question in the negative and held that a handful … Continue Reading

Nation on Hold for Supreme Court Carpenter v. United States Decision

On November 29, many interested audience members packed into the Supreme Court to witness oral argument on the issue of whether the Fourth Amendment demands that the government obtain a warrant in order to acquire long-term, cell-site location information (CSLI) from wireless service providers, in what could be one of the most influential privacy decisions … Continue Reading

Sixth Circuit Suggests Liability for Copyright Infringement May Justify Reduced First Amendment Protection for Anonymous Speech, But Recommends Consideration of Context and ‘Practical Need’ for Unmasking

Ruling on what it characterized as an issue of first impression, the U.S. Court of Appeals for the Sixth Circuit suggested that a judgment of liability in a copyright infringement case may be a tipping point justifying the unmasking of anonymous internet users. The Sixth Circuit remanded Signature Mgmt. Team v. Doe, No. 16-2188 (6th … Continue Reading

Get your update on IT & Privacy Law

The Fall 2017 Edition of the quarterly IT & Privacy Newsletter by Reed Smith Germany has just been released. We cover the regulation on cross-border portability of online content services and new case law on employee monitoring, marketing consent, influencer advertising, choice of law and venue clauses in T&Cs, and platform provider liability. You can … Continue Reading

Court Deals Blow to FTC’s Position on Unfair Data Security Practices

Over the last several years, the Federal Trade Commission (FTC) has regularly used its authority under Section 5 of the FTC Act to bring cases against companies due to their allegedly unreasonable data security measures. The FTC has paid particular attention to the safeguards that manufacturers have implemented in electronic devices sold to consumers.  Recently, … Continue Reading

Ninth Circuit Holds Alleged FCRA Violation Satisfies Article III Standing

The Ninth Circuit added another chapter to the storied tale of Article III standing jurisprudence on August 15 when, on remand from the Supreme Court, the appellate court unanimously revived a plaintiff’s Fair Credit Reporting Act (“FCRA”) suit in Robins v. Spokeo, Inc., __ F.3d __, 2017 WL 3480695 (9th Cir. Aug. 15, 2017). The … Continue Reading

Seventh Circuit Affirms Dismissal of FCRA Class Claims Based on Job Application Credit Reports Due to Lack of Standing

In yet another appellate court decision signaling the strength of the United States Supreme Court’s 2016 Spokeo decision, the U.S. Court of Appeals for the Seventh Circuit affirmed the dismissal of a pair of putative class actions against Time Warner Cable, Inc. (“TWC”) and Great Lakes Higher Education Corporation (“Great Lakes”) alleging Fair Credit Reporting … Continue Reading
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