Archives: In the Courts

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Massachusetts High Court issues rulings defining contours of constitutional protection for cell phone location data

The Supreme Judicial Court of Massachusetts issued two rulings last week addressing law enforcement access to and use of cell phone location data. In the first, the court found that pinging a cell phone’s real-time location constitutes a search in the constitutional sense. In the second, the court held that warrantless location tracking was an … Continue Reading

How (not) to restrict GDPR access requests in employment proceedings – German court establishes high threshold

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 … Continue Reading

Planet49: Advocate General’s opinion on cookies and consent bundling

On 21 March 2019, Advocate General Maciej Szpunar (“AG”) delivered an opinion on cookie consent, information obligations regarding cookies and consent bundling (Case C-673/17, Planet49 GmbH v. Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.V.). In the case at issue, users entering into a promotional lottery were confronted with two checkboxes: A checkbox obtaining … Continue Reading

Must online traders provide consumers with a contact telephone number? Advocate General says no…t necessarily

In a recent request for a preliminary ruling in a case concerning Amazon, the Advocate General Pitruzzella (AG) has given his opinion that the Consumer Rights Directive (2011/83/EU) (CRD) requires traders to offer their consumers a choice of means of communication, but this is not confined to the trader’s telephone number. The CRD includes the … Continue Reading

Get your update on IT & Data Protection Law in our Newsletter (Winter 2019 edition)

The Winter 2019 edition of the quarterly IT & Data Protection Newsletter by Reed Smith Germany has just been released. We provide updates on Facebook Custom Audiences, social plug-ins, influencer advertising, withdrawal right information, the EU copyright law reform and more. The newsletter also includes multiple recommended reads on the GDPR. We hope you enjoy … Continue Reading

Misappropriation of trade secrets in Germany – the recent Supreme Court decision

Germany is a leading jurisdiction for patent litigation, yet it is still not popular for those bringing trade secrets disputes. Frankfurt partner Dr Anette Gärtner has published a case comment, “German Federal Supreme Court: Hohlfasermembranspinnanlage II — Enforcement of Claims for Misuse of Trade Secrets”, looking at the recent Supreme Court decision regarding the misappropriation … Continue Reading

Recent rulings indicate Fifth Amendment may join Fourth Amendment as critical consideration in courts’ efforts to apply constitutional protections to smartphones and other new technology

The Fourth Amendment right of the people “to be secure in their persons, houses, papers, and effects” has been center stage in debates over technology that scarcely could have been imagined at the time it was written. See, e.g., Carpenter v. United States, 138 S. Ct. 2206 (2018); United States v. Jones, 565 U.S. 400 … Continue Reading

Social plug-ins – Advocate General issues opinion on joint controllership case

On 19 December 2018, the Advocate General (AG) delivered an opinion in a case concerning Fashion ID and Facebook, which considered the parties’ status as joint controllers, under the Data Protection Directive 95/46/EC (DP Directive), when a social plug-in had been embedded. Fashion ID’s website inserted Facebook’s ‘Like’ button as a plug-in, allowing personal data, … Continue Reading

Update on Facebook fan pages: What should organisations do after the release of Facebook’s co-controller agreement?

After another statement by the German Data Protection Authorities (German DPAs) of 5 September 2018 (Statement, available in English here), stating that the operation of a fan page as offered by Facebook was illegal, Facebook reacted “overnight” and released a co-controller agreement, the “Page Insights Controller Addendum” (Insights Addendum, available here). In a press release … Continue Reading

Get your update on IT & Data Protection Law in our Newsletter (Fall 2018 edition)

The Fall 2018 edition of the quarterly IT & Data Protection Newsletter by Reed Smith Germany has just been released. We provide updates on Facebook fan pages, the right to be forgotten, cease and desists by competitors under GDPR, spamming and customer satisfaction surveys, the German Network Enforcement Act, and more. The newsletter also includes … Continue Reading

Florida Appeals Court rules Fifth Amendment bars compelled production of iPhone passcode, iTunes password

On October 24, 2018, the Florida Court of Appeal for the Fourth District ruled that the state could not compel the production of a defendant’s iPhone passcode and iTunes password because doing so would violate the Fifth Amendment’s protection against self-incrimination. The ruling in G.A.Q.L. v. State of Florida is encouraging for privacy advocates but … Continue Reading

Germany: Berlin court holds that bitcoin is not a financial instrument contrary to the practice of the financial regulator

The German regulatory practice has been to treat bitcoin as a unit of account and thus a financial instrument. Consequently, commercial services involving bitcoin and other cryptocurrencies (including trading, brokerage, operating exchanges, investment advisory ) are regulated activities, requiring the relevant authorisation of Germany’s Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht, or BaFin). On 25 September … Continue Reading

ECtHR rules on UK mass surveillance under RIPA

On 13 September 2018, the European Court of Human Rights (ECtHR) issued a much anticipated judgment in Big Brother Watch and others v. United Kingdom (Applications nos. 58170/13, 62322/14 and 24960/15) [2018] ECHR 722. This judgment, the first mass electronic surveillance case against the UK, addressed the proportionality of bulk interception of communications. This ruling … Continue Reading

The digital beyond: Facebook ordered to disclose circumstances around deleted profile

In the recent case of Sabados v Facebook Ireland [2018], the English High Court ordered Facebook to disclose the identity of a mystery individual who requested that the platform delete the profile of a deceased user of the platform. Around six months after the death of Mr Mirza Krupalija, Facebook received a request from an … Continue Reading

ECJ ruling on fairness of disproportionately high default interest rate in consumer loan agreements

In the joined cases of Banco Santander SA v. Demba and another (Case C-96/16) and Cortes v. Banco de Sabadell SA (Case C-94/17), the European Court of Justice (ECJ) considered the application of the Unfair Contract Terms Directive (Directive) in two joined cases concerning the rate of default interest in consumer loan agreements, which were … Continue Reading

Munich Court of Appeal prohibits Facebook from deleting a post that does not fall under the German Hate Speech Act

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, available in German here). Facts of the case The claimant is a Facebook user who had taken part in a discussion on the Facebook page of … Continue Reading

Federal Appeals courts decline to exclude cell phone location information collected without warrants pre-Carpenter, but Carpenter’s future impact still unclear

In his dissent in Carpenter v. United States, 138 S. Ct. 2206 (2018), Justice Kennedy observed that “the Cyber Age has vast potential both to expand and restrict individual freedoms in dimensions not contemplated in earlier times.” Justice Kennedy worried that the ruling, which held that a warrant is generally required for police to access … Continue Reading

Get your Update on IT & Data Protection Law in our Newsletter (Summer 2018 Edition)

The Summer 2018 Edition of the quarterly IT & Data Protection Newsletter by Reed Smith Germany has just been released. We provide updates on Facebook fan pages, cookie consent, influencer marketing, liability of platform providers, framing and more. The newsletter also includes multiple recommended reads on the GDPR. We hope you enjoy reading it.… Continue Reading

CJEU decides on re-posting of protected content

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 … Continue Reading

Court of Appeals Berlin decides on the obligation to provide technical protection against framing

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 … Continue Reading

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
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