Thu, May. 04, 2006

Liability for Advice

CB - Washington.  Customers bear the risk of investment advice which later proves to have led to an incorrect decision, according to the Supreme Court, Bundesgerichtshof, which decided the matter XI ZR 63/05 on March 21, 2006. An adviser's liability is limited to evaluating forseeable factors known at the time the advice is rendered.

Timeline for Action

CK - Washington.   The Berlin Ministry of Justice issued a press release on May 4, 2006 which details the action plan for the implementation of European nondiscrimination provisions. These rules affect many areas of the law and the implementation is as complex as the European rules. The coalition government has now agreed on a bill which the press release explains in great detail, only in German.

Anonymous Defamation?

CK - Washington.   Two German decisions on the liability of forum owners for objectionable comments left on web sites may lead to more users in Germany moving questionable discussions to American servers. Although forum providers enjoy some insulation from liability for activities of their users under the Tele Services Statute, Gesetz über die Nutzung von Telediensten, Teledienstegesetz, of July 22, 1997, as amended, two courts recently increased the liability of forum providers.

The Düsseldorf court on January 25, 2006, 12 O 546/05, lowered the requirements for take down notices and the Hamburg court on December 2, 2005, 324 O 721/05, required pre-emptive measures from forum owners, such as screening submissions before publication.

Evidence points to many German users' belief that anonymity in the United States encourages the use of American servers for defamatory activities, such as the insults hurled at a Diethelm Goeckel at Recent discussions in German internet forums actively advocate the use of servers located in the United States.

U.S. servers as a safe harbor? That seems unrealistic. Recently, Germany and the United States enhanced their cooperation in criminal matters and provided for expanded mutual legal assistance. Moving criminal activity to the United States is unlikely to be a successful strategy for those who wish to spread misinformation on the Internet. Foreign criminals are not welcome anywhere.

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