Sat, Jul. 04, 2009

Burden and Relief: German Data Protection

CK - Washington.   On July 3, 2009, the federal diet in Berlin passed executive-sponsored data protection and data audit amendments that impact seriously on employers and data services providers, including data merchants and polling companies.

Advertisers working with data merchants will need to disclose their data sources. Use, storage and collection of personally identifiable data will depend even more on consent. Providers of agreements seeking such consent must highlight the terms of consent. Advertising with self-collected customer data will remain legal.

The bill also admonishes data collectors to adhere to principles of sparsity and responsibility. For instance, the use of pseudonyms and anonymization of data will become more important. With less information collected, data protection burdens shrink.

The bill is an almost incomprehensible jumble and some portions seem ripe for challenge in court. The background information from the various parliamentary committees is useful: Text 16/13657 of July 1, 2009, Text 16/12011 of February 18, 2009. The data audit provisions will enable the certification of providers as responsible data handlers, by way of an official seal of approval.

Recent discoveries of questionable data handling practices in Germany caused continuous media attention adverse to employers utilizing background screening facilities and to data management and trading companies. The target du jour is Deutsche Bank for allegedly spying on a board member, by screening and monitoring some activities.

Legal Guide for Web Shops

CK - Washington.Michael Seidlitz refers in Twitter to a brief guide on legal aspects of web shop protection, infringement of copyrights and other rights in photos, text, video and lists. The guide by Sascha Faber provides a useful introduction, in German, to rights and obligations which differ from those in the United States in various respects.

The most important aspect of German infringement law is that the infringed party can claim both correction and statutory legal fees from an infringer. But if the cease and desist demand, Abmahnung, misses mark, the infringer may countersue and collect from the creator of a work that may not meet the minimum requirements of the Copyright Statute or the Statute Against Unfair Competition, as previously discussed in the German American Law Journal.

In the transatlantic war of words and pictures, such incongruency frequently leads to misunderstandings of rights and obligations and occasionally to surprise or regret.

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