Tue, Dec. 21, 2010

German Statutes in AppStore

CK - Washington.An iPhone database of German statutes has become available. It comprises 260 German statutes as well as EU directives and some state acts.

The publisher, dejure.org, has long been an online leader in publishing the most-referenced German statutes. The trial version of the application is limited to the federal constitution, Grundgesetz.

The dejure.org website with its useful search functions remains available. Unlike the website, the iPhone database does not require access to the internet and offers more sophisticated features.

Sun, Dec. 19, 2010

Pay to Click: Palace in the Box

CK - Washington.   Public foundations curating palaces, castles, museums and the like may charge photographers for pictures taken (a) on, and (b) of their facilities for commercial use, the German Supreme Court for Civil Matters, Bundesgerichtshof, in Karlsruhe ruled on December 17, 2010. The decision clarifies that public owners of real estate enjoy the same rights as private owners. Neither may block pictures taken from offsite but all enjoy a property right to control onsite photography.

In addition, the court affirmed its rulings on internet immunities: A portal listing photos of such facilities will be immune from liability until it has knowledge of an infringement. The existence of a third-party photo uploaded by a forum user does not confer such knowledge onto the site operator because the forum cannot determine whether or not (a) the photo was taken with permission, or (b) taken off or on the grounds. The approach is similar to the CDA/DMCA safe harbor rules in the United States.

To date, the court has issued only a detailed press release on its website. As is the BGH's custom, the written opinion will follow. The Medien Internet und Recht site provides, among other things, links to the lower court rulings in the case which combines three matters, V ZR 44/10, V ZR 45/10 and V ZR 46/10, in the top-level review.

Wed, Dec. 15, 2010

Limits on Social Media Endorsements

CK - Washington.   Endorsements in blogs and social media for products and services are subject to truth-in-advertising controls both in the United States and Germany, Carsten Ulbricht concludes in a German-language overview published December 15, 2010. His summary Gekaufte Nutzermeinungen in Social Media outlines the Federal Trade Commission guidelines for the United States and the German statutory rules on fair competition. Both should be observed in transborder publications where products and services could become available to consumers outside of the domestic market.

Sun, Dec. 12, 2010

Republished Feeds: Copyright Issue

CK - Washington.   RSS and Atom feeds have always raised copyright concerns. Many business models rest on the assumption that feeds may be republished. Some services offer the integration of feeds into other sites; others track, make searcheable or archive feeds for own or third-party use.

A concern of feed republication for authors is the use of republished full-lengh feeds on spam, fraud, domain parking, pornographic and others sites deemed of questionable value. The republication does not only water down the search ranking of the original but may inaccurately associate the author with the third-party site.

A Hamburg trial court has now confirmed that the third-party use of feeds can violate the author's copyright, docket number 36A C 375/09, judgment of September 27, 2010. A republisher can be held accountable for damages and costs unless the author has licensed the material to the republisher or applied one of the available open-source licenses to the feed.

Feeds of reports discussing the decision are available on many German feed-republishing sites, including spammy ones, as a search with RSS Feeds 36A C 375/09 demonstrates. The decision clearly constitutes a double-edged sword for authors and republishers alike.

Fri, Nov. 26, 2010

No Flying Forum in Berlin

CK - Washington.   A court in Berlin rejects the notion of unlimited forum selection in internet cases. It favors the standard rule. Which is: File you complaint in the court where the defendant resides or, sometimes, where the plaintiff resides or, in torts cases, where the tort was committed or results in harm.

None of that analogy stuff from print publications in libel and such matters, the court said. Those you can sue anywhere the publication circulates.

Berlin court to all: Not in my court. In internet cases, you may not sue anywhere the material is seen. File your action where the offensive stuff got posted or go back to the standard rules for personal jurisdiction.

Beware: The court is the lowest court Berlin has to offer. Its reasoning makes sense, however, and it's based on a convincing application of a supreme court decision of March 2010.

Flying Forum = literal translation of the German term Fliegender Gerichtsstand.

Court, date and case: Amtsgericht Charlottenburg, November 16, 2010, 226 C 130-1.

Like? The decision is likable. The flying forum rules are technically unsustainable in internet cases and legally questionable. I don't see any circulation of posts, for starters. They are somewhere, and as a visitor, I go there to look at them.

Thu, Nov. 04, 2010

Return of Goods to Online Merchant

CK - Washington.   Online merchants suffered a blow on November 3, 2010 when the German Supreme Court for Civil Matters in Karlsruhe ruled against a merchant in the case VIII ZR 337/09. The merchant had sold a water bed for 1253 Euros to a private consumer. It had provided the required legal information for the return of the purchase, explaining that filling the bed would render it unsuitable for resale if returned.

The customer filled the bed, examined it and returned it for a full refund. The merchant refunded 258 Euros, the cost of the embedded heating unit. The customer sued for the balance and won.

The court, Bundesgerichtshof, held that European consumer protection law as applied in Germany requires the full refund. The merchant's return information was accurate but inapplicable to the extent the customer had to fill the bed for its examination.

Under the E.U. rules, a consumer may examine the goods purchased online without resulting liability or deduction, and the plaintiff had no option other than filling the bed with water. The resulting loss is a risk of doing business that the merchant needs to absorb and cannot shift to the consumer, the court affirmed.

Fri, Oct. 15, 2010

GPL grants Copyright, not Trademark

CK - Washington.   Rights of use in the copyright held by a programmer, not trademark rights are the objects of a GPL open source license, a German court held on September 28, 2010.

Often, the lag time between an oral and written decision is quite long in German courts, but the Düsseldorf court of appeals released its written ruling in the xt:Commerce SP2.1 matter, docket number I-20 U 41/09, quickly.

Numerous commenters discuss the issue in Germany, and ifrOSS has a detailed report on the facts and law, in German.

Thu, Sep. 16, 2010

Personal Property: German and English Laws

CK - Washington.   American readers can benefit from a new in-depth English-language comparative analysis at the German Law Archives: Rahmatian, A Comparison of German Moveable Property Law and English Personal Property Law.

The German law of moveable property in the third book of the Civil Code under the heading Sachenrecht is also covered in the new two-volume introduction into German business laws edited by Thomas Wegerich and published by West.

Disclaimer: The author wrote the chapter on business negotiations in Germany, published in the above Business Laws of Germany.

Thu, Aug. 19, 2010

Protected Expression in Closed Online Forum

CK - Washington.   Without fear of disclosure to third parties, users of closed online mailing lists may express and form their opinion in forum exchanges. A German court decided in favor of a forum member whose critical comments a non-member had published and ridiculed outside of the forum.

The Stuttgart district court found in favor of an expectation of legitime privacy which it balanced against the third-party publisher's freedom of speech. The Telemedicus blog published the decision in the matter 17 O 341/09, of May 6, 2010. The court enjoined the publication on the internet of the protected email to the forum.

Mon, Aug. 16, 2010

Legalistic Hysteria Greets Street View

CK - Washington.Google Street View is a simple tool but in Germany, it provides continued, rich summer entertainment. Negative comments from politicians triggered a timid reaction from Google. It suspended the introduction of the service, beefed up on PR and arranged with politicians, data protection agencies and others technical solutions.

Google promises to respond to objections from property owners, municipalities and residents who prefer to remain unviewed or incognito. It will render faces and car tags unrecognizable, similar to how it used to display the Cheney compound on Massachusetts Avenue on its Google Maps service.

Many German lawyers offer assistance to individuals who fear an invasion of privacy or ridicule from neighbors for having had an unkempt lawn the day Google drove down their street. Others organize community opposition. Somber legal analyses clearing Google of violations of the law like Google Street View: Eingriff in Persönlichkeitsrechte und Datenschutz oder unbedenklicher Service? abound yet fail to calm the hysteria.

The second house of the federal legislature. Bundesrat, seeks to have the government and the principal legislative body, Bundestag, pass an anti-Google statute. The planned amendment would address Street View in the federal data protection statute.

Sun, Aug. 15, 2010

No Crime: Third-Party Wifi Connection

CK - Washington.Does connecting to a stranger's WIFI constitute a crime? Courts in Germany law interpreted the law differently. The most recent decision, in the matter 20 Ds-10 Js 1977/08-282/08, found no crime.

As a matter of societal and legal policy, the decision is sensible. As smartphones, laptops, PDAs and other mobile devices roam, they can link up with routers automatically, and routers automatically offer Wifi connections. The court decided the matter, however, on narrow statutory grounds. The Wifi connection can occur without the intent or knowledge of the device's owner.

A trial court in Wuppertal tested various criminal statutes, ranging from data protection to systems invasion. On August 3, 2010, the court concluded that the device does not seek protected data through the WIFI router. The router's provision of an IP address does not constitute an invasion. The data received by the mobile device, such as the router-assigned IP address, does not fall within the scope of identifiable personal data which the law intends to protect.

As to non-criminal liability, the German Supreme Court in Karlsruhe had recently decided that contributory infringement liability may attach to leaving a Wifi router open to public access. That court may have misunderstood in its May 12, 2010 decision long-standing rules that have granted communications providers immunity for the acts of their users.

Thu, Aug. 05, 2010

Recognition of US Bankruptcy Procedure

KB - Washington.   The German Supreme Court in Karlsruhe, Bundesgerichtshof, ruled on October 13, 2009 on the recognition of American insolvency proceedings under Chapter 11 of the United States Bankruptcy Code by German courts, in the matter X ZR 79/06. Recent bankruptcies with international effect such as Chrysler and General Motors underscore the significance of the decision which Jessica Schmidt summarized and discussed in the German American Law Association Newsletter, Bonn, 2010, p.54.

The defendant in the case before the high court is a legal entity and an affiliate of a US corporate group with its registered office in the USA. It owns an American patent which the plaintiff successfully invalidated in a German court. The defendant appealed to the Bundesgerichtshof and then filed for Chapter 11 bankruptcy in the United States. The parties disagreed in the German case whether the appellate proceedings were suspended by that filing or could be ignored in Germany.

The recognition in Germany of foreign bankruptcies is codified in § 343 I 1 InsO, the German Insolvency Act. § 343 I 1 InsO requires that foreign insolvency proceedings pursue the same objectives as the German bankruptcy. The objectives need not be congruent but equivalent. The court found Chapter 11 to be equivalent because it was essentially the role model for the German insolvency plan procedure found in §§ 217 InsO et seq. Although Chapter 11 diverges in some procedural aspects from the German system, the differences do not jeopardize a finding of equivalence.

As a result of their recognition under German law, § 352 I 1 InsO extends the stay of American bankruptcies to German legal disputes which, in turn, impact the estate. The automatic stay of § 362 US Bankruptcy Code is not contrary to this principle. Although the automatic stay applies to all proceedings against the debtor, the court found the instant party's role in the trial court to be determinative. With the debtor being the defendant and not the plaintiff in the case before the high court, the rule of automatic stay should apply. The court found the United States procedural system in which the validity of a patent is judged within a patent infringement lawsuit initiated by the debtor to be irrelevant. This conclusion is based on the obligation of the German court to consider German procedure, not the American counterpart.

The plaintiff argued that it is unreasonable for German legal dispute to be suspended by the filing in the United States, because in this case the first initial judgment is enforceable. The court found the instruments provided by the US bankruptcy law to modify or annul the automatic stay to offer sufficient protection, because they give the plaintiff the opportunity to seek a revocation of the suspension. The application of these rules of American law do not violate German public policy, the court explained. Schmidt agrees with the court and does not criticize the opinion in any way. She found the legal certainty which the German court established with its decision to be essential due to the latest bankruptcies of major American corperations with international operations. The recognition of American insolvency proceedings under Chapter 11 of the United States Bankruptcy Code by German courts is, therefore, of high practical relevance.

Thu, Jul. 08, 2010

Denic to Delete Dishonest Domain

.   German .de TLD monopoly registrar must delete domain names that obviously violate the rights in names protected by section 12 of the German Civil Code, a landmark ruling of the Frankfurt Court of Appeals dated June 17, 2010 states.

Denic's obligations in civil encorcement proceedings are hotly contested. In the now-decided dispute known as regierung-oberbayern.de, docket number 16 U 239/09, the state of Bavaria claimed that certain domains incorporating the names of districts and the German equivalent of government or administration violated its rights.

The Frankfurt court determined that a judgment against the owner of the domains can be enforced against Denic. By contrast, and in rejecting a wide-spread assumption, a judgment against the registered administrator of the domain name is insufficient for an enforcement action against Denic, the court explained.

The new decision signifcantly calls Denic itself, in its capacity as the registrar of obviously illegal domains, the violator and proper direct defendant. The Bettinger Schneider Schramm law firm of Munich published the decision, in German, on its website.

Mon, Jun. 07, 2010

Counter Terrorism: Separation of Powers

GKM - Washington.   The observer of German counter terrorism policies since the 9/11 terrorist attacks in 2001, has seen fundamental changes in the German security architecture on the one hand, and great scepticism towards these changes on the other.

Frank Gadinger, a 2008 Research Fellow at the American Institute for Contemporary German Studies conducted research on the differences between German and American counter terrorism policies. With Dr. Dorle Hellmuth, Assistant Professor at the School of International Service at American University in Washington, D.C., he analyzed these policies in AICGS's recent Policy Report 41. In the context of their analysis, Gadinger and Hellmuth discussed these policies in a seminar titled Finding Security in an Age of Uncertanity: German and American Counterterrorism Policies on June 4, 2010. Gadinger focused on German polices, and outlined major differences, one of them being the Principle of Separation, Trennungsgrundsatz, a principle the German Supreme Court has developed.

This principle says that there must be a strict organizational and functional separation of law enforcement and intelligence agencies. The separation is considered necessary because of the fine-tuning of authorization and limitations: Law enforcement agencies are authorized to conduct actions that have severe effect on constitutional rights, such as the right to arrest someone or the right to use physical force. These authorizations are not only limited to, but also justified by the existence of an imminent danger for legally protected interests or probable cause that a crime has been committed.

Intelligence agencies are authorized, however, to collect information without the threshold of an imminent danger or probable cause. Therefore, they are not authorized to certain invasive actions. Thus, if these agencies were to cooperate too closely with genereal law enforcement agencies, intelligence agencies could access information that has been gathered in the course of police activities which the intelligence agency itself would not have been authorized to conduct. Misuse of power could be one result; an overly powerful intelligence agency the other.

This principle is unknown not only in the USA, but also in other continental European countries. Gadinger commented on the historical background as explained by the heinous experiences of Germany with a secret police, Gestapo, during the Third Reich. But, this principle has softened, as Gadinger demonstrated, in the course of national and international cross-collabaration of such agencies in the past few years.

Tue, Jun. 01, 2010

King of the Castle

GKM - Washington   Today, the headline of the German magazine Spiegel proclaims with an allusion to Schloss Bellevue, Berlin residence of Germanys President, that The Castle is Looking for a Boss. Federal president, Bundespräsident, Horst Köhler set political Germany in a state of shock after resigning yesterday from office and hereby leaving Germany without a head of state. Köhler is not the first president to finish his time in office preterm by resigning, but the first to do so with immediate effect.

The German constitution, Grundgesetz, GG, provides exact procedural rules for this situation: Pursuant to Art. 54 IV GG, new elections have to take place within 30 calendar days. In the meantime, the president of the federal council, Bundesrat, will be the acting president of the federation, Art. 57 GG.

Unlike the President of the United States of America, the Bundespräsident serves only as the head of state, but not as head of government. He is not elected by the people -- neither directly nor through electorals -- but by a constitutional organ, an electoral committee called the Bundesversammlung, Art. 54 I GG, whose sole purpose is the election of the federal president. Half of its members are members of the German Parliament, Bundestag. The 16 state parliaments, Landtage, then dispatch an equal numer of delegates. The number of delegates that each state can send to the election is proportional to its population figure.

The number of the members of parliament may vary from term to term. Currently it consists of 622 members, which means that the electoral committee will comprise no more than 1244 electors.

Pursuant to Art. 54 VI GG, a candidate wins the election with an absolute majority. If an absolute majority is not attained, then a second round of voting follows. If an absolute majority is once again not attained, then the candidate with the most votes -- meaning a simple majority -- wins the election. There will be no third round.

The discussion over possible successors has already erupted and it remains to be seen who will be the new Boss in the Schloss.

Mon, May. 24, 2010

Copyright Liability Without Link

CK - Washington.   In Berlin and Hamburg, maintaining a copy of a copyrighted work on your server or internet space, such as a map, for personal use will render you liable for a copyright violation.

That is true regardless of the existence of a link on a website to the copied file. As long as a user can enter an address into a browser to access the copy, there is a violation of the copyright, the appellate court in Berlin held on April 24, 2010 in the matter 24 W 40/10.

The Dr. Bahr Rechts-News Archiv blog lists this and other decisions supporting this court's proposition under German copyright law.

Sun, May. 16, 2010

Google and Data Protection Laws Under Fire

CK - Washington.   Recently, German data protection officers opened themselves to ridicule when they fussed about Google's Streetview cars gathering WiFi-access point information. After all, anybody can collect that information. Most WiFi router broadcast identifying information openly. Many programs, including those distributed for free by the German federal internet security agency for the protection of government agencies, BSI, business and households on the BOSS CD, can display and collect not only identifying information but also the real-time wired and wireless data stream.

WiFi-identifying information is technical, similar to IP-addresses which also do not identify persons, and includes data such as the name of a network, a hardware number and the type of encryption. German data protection laws focus on personally identifiable information and permission. With or without permission, personally identifiable information is subject to strict rules its collection, storage and destruction.

Last week, Google disclosed that it had accidentally collected fragments from the wireless data stream that hit its Streetview vehicles. The media and data protection offials struck Google with even greater fury. Again, they may be mistaken because the fragments are highly unlikely to constitute personally identifying information, and no collection of such data has been alleged.

And again, the government-sponsored tools have long enabled anybody to collect much more information from the wireless data stream. The criticism of Google ignores the cornerstone of German law: Personally identifiable information and permission are not involved, unless the officials possess additional technical information on the Streetview program that they have not disclosed. As a result, Google's activities, now stopped, remained compatible with German law.

The Telemedicus blog analyzed the applicable legal issues objectively, in German, without the prevailing hostile attitude. In addition, it published an interview with German internet law professor Thomas Hoeren who finds fault in the key concepts of German data protection law.

Data sovereignty, he argues, should not be limited to personally identifiable information, a term coined in the 1960s and 1970s--decades predating broad access to the internet. In addition, he advocates a review of the permission concept that is reflected in the fine print of many internet sites and fails to adequately inform users of their exposure.

Wed, May. 12, 2010

WiFi-Owner's Contributory Liability

CK - Washington.   The long-anticipated Supreme Court ruling in the WiFi liability dispute arrived as a dud. Yes, there can be contributory liability for the downloads of copyrighted music by third-party users of an insufficiently protected WiFi connection to the internet.

No, the owner of the unit is not liable for damages. The owner can be required to take ordinary measures that prevent third-party access. Therefore, the owner in the matter I ZR 121/08 - Sommer unseres Lebens should be liable for the cost of a cease-and-desist demand issued by the owner of the copyrighted work, the court in Karlsruhe held on May 12, 2010.

The Bundesgerichtshof court issued a press release and will publish its opinion later. At this point, the court appears to limit the reach of its decision to non-commercial uses of WiFi equipment. The liability of coffee-shops and hotspots may differ.

The court places German R&D at a disadvantage. The development of techologies that rely on open WiFi access hits a wall. The music industry just does not like it. Or will German R&D come up with controlled open-access channels on otherwise closed WiFi systems?

Fri, May. 07, 2010

Constitutional Rulings in Germany

CK - Washington.   The German Federal Constitutional Court in Karlsruhe recently published the following decisions. The dates follow the day, month and year format. Cases are not cited by party names. Instead, German citation rules rely on docket numbers. The court publishes its decisions in German although it releases some press statements in English.
  1. 1 BvR 626/10 dated 19.04.2010:
  2. 1 BvR 299/10 dated 14.04.2010:
  3. 1 BvR 2140/08 dated 14.04.2010:
  4. 2 BvR 743/01 dated 13.04.2010:
  5. 1 BvR 1473/09 dated 08.04.2010:
  6. 1 BvR 862/10 dated 08.04.2010:
  7. 1 BvR 810/08 dated 07.04.2010:
  8. 2 BvR 366/10 dated 05.04.2010:
  9. 1 BvR 1433/08 dated 29.03.2010:
  10. 1 BvR 1373/08 dated 29.03.2010:
  11. 1 BvR 2446/09 dated 25.03.2010:
  12. 1 BvR 882/09 dated 25.03.2010:
  13. 1 BvR 448/09 dated 25.03.2010:
  14. 2 BvR 2092/09, 2 BvR 2523/09 dated 24.03.2010:
  15. 1 BvR 2130/09 dated 24.03.2010:

Thu, May. 06, 2010

New Supreme Court Justices

CK - Washington.   The replacement of one justice at the Supreme Court in the United States is a major affair with often huge long-term implications. By contrast, the appointment of Supreme Court justices in Germany hardly makes the news.

Today, the electoral committee for justices to the several German supreme Courts elected 21 new members: Eleven for the court for civil and criminal matters, five for the supreme administrative court, one each for the employment relations court and the social matters court and three for the tax court, the Berlin Attorney General explained in a press release of May 6, 2010.

Thu, Apr. 29, 2010

Thumbnails Legal in Search Engines

CK - Washington.   Use available means to protect your image if you don't want it to end up as a thumbnail in a search engine, the German Supreme Court told a copyright holder today.

Lower courts considered Google thumbnail images violations of German copyright law, but deemed the owner estopped. The Supreme Court finds thumbnails legal, however, as it explained in a press release of April 29, 2010 in the matter I ZR 69/08.

The landmark Vorschaubilder decision will generate much speculation as the written opinion will be published later, perhaps months from now. A quick English translation of the press release is available at IPKat.

Tue, Apr. 20, 2010

Frankfurt Court Enjoins Link on Twitter

CK - Washington.   A German TRO in the matter 3-08 O 46/10 before the Frankfurt District Court orders a party to cease providing a link in that party's Twitter messages. The court received the petition on April 15, 2010 and decided on April 20, 2010.

Unfortunately, the preliminary measure comes with a heavily redacted order from which the facts are not easily discerned. The sanction for violations is a fine of 250,000 Euros.

The objectionable link appears to relate to commercial or anti-competitive conduct. The link leads to statements on a website that belongs to neither of the parties.

Mon, Apr. 05, 2010

Forced to Leave Facebook? Not so.

CK - Washington. Unless Facebook changes its privacy rules, the German Secretary of Consumer Protection sees herself forced to leave Facebook, Ilse Aigner writes in her open letter dated April 5, 2010. April Fools?

No, she is serious, despite a law on the books that requires almost anyone publishing anything on the internet to divulge volumes of personal information for the use of - ostensibly, consumers, - impersonators, stalkers, phishers and hackers who can then easily forge the credentials of the innocent.

Secretary Aigner, nobody forces you to leave Facebook; and please work in the Berlin Cabinet on doing something about the dangers to privacy and data protection from the exaggerated and possibly unconstitutional German identification requirements that the courts have expanded into all directions of the net.

Thu, Apr. 01, 2010

Pension Split in Divorce Protected

CK - Washington.   A new pension fund system begins operations today. Pensions split in a divorce go by default into the new fund, although the parties to the divorce can provide otherwise. The German federal attorney general announced the fund, Versorgungsausgleichskasse, on April 1, 2010. It implements rules that became effective in September 2009. The fund assets are fully funded and insured by the Protektor bailout system.

Tue, Mar. 02, 2010

German False Light Jurisdiction Extends to NYT

CK - Washington.   The New York Times has some 14000 German subscribers, registers German readers separately and markets its online publications to German readers. These factors influenced a ground-breaking decision on long-arm jurisdiction by the German Supreme Court for Civil Matters in Karlsruhe of March 2, 2010 in the matter VI ZR 23/09.

Two lower German courts had refused to exercise international jurisdiction over the New York Times in response to a false light complaint that its online service violated the personality rights of the plaintiff, a resident of Germany.

The Supreme Court reversed and found jurisdiction under §32 ZPO of the German federal rules of procedure. The decision, to date explained only by the court's press release #48/2010, is unlikely to be popular in many German circles who deplore the reach of U.S. and British principles of personal--in particular long-arm--jurisdiction.

The court tends to exercize restraint in matters of international jurisdiction and the internet so that fears seem unfounded that Germany might police the internet. In fact, the trend has been to question German jurisdiction where the nexus to Germany was not particularly strong.

Unconstitutional Data Hoarding

.   The unfettered collection of internet connection data by communications service providers for its potential use by government can be unconstitutional, the German Supreme Constitutional Court decided today with respect to a European Union directive. Under directive 2006/24/EU of March 15, 2006, German law requires ISPs to collect - and store for six months - such data regardless of eventual needs by the government.

The supreme court's lengthy decision states that such hoarding out of an abundance of caution for unspecified purposes is unconstitutional. Nice-to-have is not a sufficient reason to limit fundamental constitutional principles. At the same time, the court confirmed the constitutionality of the use of such data for matters of national security and certain categories of crimes.

On March 2, 2010, the court, Bundesverfassungsgericht, published links to the decision and to its summary, in the matters 1 BvR 256/08, 1 BvR 263/08 and 1 BvR 586/08.

Mon, Feb. 22, 2010

Data Inspector General Confronts Facebook

CK - Washington.   Commissar Peter Schaar as the head of the federal data protection agency singled out Facebook as a major mischief maker. His February 20, 2010 radio interview is available for download and has been reported widely in German media.

While acknowledging that users are their own first line of defense, Schaar noted that Facebook opened an office in Germany and needs to abide by German data protection law.

Facebook's practice of phishing contact data from mobile phones and then triggering communications with such contacts without aporopriate disclosure violates German law, he argues.

Mon, Feb. 08, 2010

Illegal Information on Tax Evasion

AK - Mannheim.   German authorities once again were in the delicate position of weighing to buy illegally obtained information on German tax evaders in one of the world's notorious tax havens, thereby potentially rendering themselves liable to prosecution and risking courts to bar the evidence in later criminal proceedings against evaders.

The first case occurred in 2008 with data obtained in Liechtenstein and ended with a quite publicly staged arrest of then Deutsche Post chief executive Klaus Zumwinckel. Unlike Zumwinckel, other tax evaders chose the court room over striking a deal with prosecutors, and lost, at least for now.

Those defendants had argued against the use of the acquired information since its collection had been illegal and in violation of international conventions on judicial assistance.

The Bochum Circuit Court found no reason to quash the evidence, prompting defendants to seek redress before Germany's Federal Constitutional Court which should decide the issue some time in 2010.

The new case involving data from Switzerland is quite similar, but this time the state government of North-Rhine Westphalia rather than Germany's federal intelligence service purchased the information for 2.5 million Euros. The legal problems surrounding the purchases are largely identical, including aspects of procedural, constitutional and public international law.

In Germany, some aspects of procedural integrity concerning collection of evidence have not yet evolved as it has in the American criminal law system. German courts usually balance the interest of Germany's criminal law system in the prosecution of offenders against the defendant's rights and the procedural integrity. Moreover, the unlawful collection of evidence has to violate the defendant's legal sphere in order to be blocked, meaning it has to have violated a procedural right that exists for the express purpose of safeguarding a defendant's rights.

With respect to public international law, the Bochum court did not follow the defendant's arguments on the violation during the collection phase, and the court doubted even the occurrence of such a violation. It considered the alleged violation insufficient to bar the evidence from use in a trial. Only when the use of the information itself would amount to a breach of international law, it held, would the poisoning of the evidence follow.

With regard to procedural and international law aspects, its decision may not withstand the scrutiny applied by the Federal Constitutional Court. This author discusses vulnerabilities of the ruling in an article appearing in the International Enforcement Law Reporter

Wed, Jan. 27, 2010

No Internet Fears at Supreme Court

CK - Washington.   German top courts are less fearful of the Internet than German politicians, voters and lower courts. Fearless, and knowledgeable, too. Time and again, they correct knee-jerk reactions from lower courts and parliamentarians.

When a convicted criminal sued a public radio service to have it remove references to his full name in 1993 reports stored online in the station's archive, the Federal Supreme Court in Karlsruhe reversed the lower courts and decided in favor of the radio service on December 15, 2009.

The lower courts assumed that by serving his sentence, the plaintiff had acquired a heightened interest in his constitutionally protected personality rights which outweighed the public interest in learning his identity. The national public radio was supposed to redact its online archives.

The supreme court for civil matters held, however, that German constitutional protections of press freedom outweigh that individual's interest, and that data protection laws do not affect the continued availability of journalistic data properly handled at the time of the crime.

To prevent chilling effects on the press caused by lower courts, the court, in this matter, VI ZR 227/08, clarified its constitutional balancing test. Redaction may still be needed when the crime is insignifant and an ancient report only serves the curious.

Sat, Jan. 09, 2010

Gerglisch in German Courts

CK - Washington.   Gerglisch will become an official language in German courts. Fearing the sound of international litigation being sucked into Anglo courts and into arbitration, a statutory change is in the works.

The courts feel well equipped to handle the linguistic challenge and look forward to establishing special panels that--similar to commercial panels--consist of one judge and two laypersons. The Cologne circuit has already laid the ground work and permits hearings in English.

Until the amendments to the constitutional statute for the judiciary, Gerichtsverfassungsgesetz, pass, however, written submissions and opinions must be in German. FAZ newspaper summarizes, in German, the legislative project which already authorizes parties to state a language preference in their choice of forum clause.

Sun, Jan. 03, 2010

German Business Law Negotiations: Chapter

CK - Washington.   Instead of a potentially biased, too friendly review, here is the index of my book chapter as recently published in Wegerich (ed), Business Laws of Germany, vol. 2, West, New York (2009), ISBN 9780314900050:

18:1 In general


18:2 In general
18:3 Unity, justice, and liberty
18:4 The lawyers
18:5 - The standard lawyer
18:6 - Differentiation among German lawyers
18:7 The German legal system


18:8 Hierarchy and titles; tickle the titled
18:9 Parochialism
18:10 Sign here
18:11 Do not sign this
18:12 Preconceived notions
18:13 Substantial performance
18:14 Honest mistake
18:15 - Little white lie
18:16 - Insolvency and piercing the corporate veil
18:17 Who negotiates?
18:18 Faltering negotiations
18:19 - Liability for contract still in negotiation
18:20 - Discovery
18:21 - Double-crossing litigation


18:22 Conclusory remarks
I summarized, in German, the concept for the chapter which differs in purpose greatly from the wonderfully rich chapters of descriptions of German substantive law, in Neues Buch: Verhandeln mit Deutschen.

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