FW - Washington. On October 9, 2013, a new Improper Business Practices Act called Gesetz über unseriöse Geschäftspraktiken entered into force.
The statute targets cease-and-desist letters concerning copyrights which in Germany normally trigger high legal fees charged to infringing consumers. Now these violation fees will be limited to less than 200 euros if the consumer infringes for the first time. Cease-and-desist letters must specify the owner of copyrights allegedly infringed.
The new statute also protects consumers from billing practices found in the fields of internet and telephone gaming. Some vendors call consumers with an offer to participate in a game of chance and subsequently charges them unexpected fees. In addition the act requires more transparency in collection matters. Among other changes to current law, collection letters must disclose the creditor for whom the collection effort is made.
DJ - Washington. On September 3, 2012, the German Federal Constitutional Court in Karlsruhe ruled against the relatives of civilian victims of a NATO airstrike. The court affirmed two rulings that dismissed the actions for compensation against the Federal Republic of Germany.
The court, Bundesverfassungsgericht, stated in the matter 2 BvR 2660/06 - 2 BvR 487/07 that private individuals asserting damages resulting from violations of international humanitarian law do not have an individual claim for compensation under international law. In addition, the court rejected liability claims for improper acts of public authorities.
CK - Washington. Hard Rock Cafe Heidelberg is not a licensee or franchisee of the renowned Hard Rock Cafe group and existed as a look-a-like of the London outfit for a few years before the group entered Germany with restaurants in Berlin and elsewhere. The group sued the Heidelbergensis tribe for trademark infringement and unfair trade violations.
Applying principles of laches and equitable estoppel, the German supreme court in civil matters, Bundesgerichtshof, in Karlsruhe decided on August 15, 2013 that the Heidelberg outfit may remain open under its trade name but may no longer use confusing logos or sell confusing merchandise. Each violation of the law begins anew with each sale, so that neither of the above principles would apply to the merchandising.
The court remanded the case in part so that the lower courts could ascertain and assess additional facts that relate to damages and ancillary claims. The court published a summary, in German, on its website, and it will publish the decision in the matter I ZR 188/11 - Hard Rock Cafe soon.
CK - Washington. Germany implements a European Union directive on consumer protection by requiring internet vendors to list on websites detailed identifying information, including corporate IDs, tax IDs and managerial appointments. The identification is commonly called an Impressum and frequently translated into English as Imprint. The implementing statute exempts vendors from outside of the E.U.
A June 18, 2013 decision from the Düsseldorf Court of Appeals in the matter I-20 U 145/12 extends the reach of the statute, however, to such vendors which trade within the E.U. and, in a more novel approach, renders the third-party internet platform on which the vendor trades to sanctions for failing to provide technical means for the creation of an Impressum.
Some German observers believe that the decision will force platforms such as a Facebook, Twitter and Google to offer templates that enable vendors to comply with the E.U. and German rules. Courts have been expanding the reach of the obligations arising from the TMG statute since its enactment. While violating constitutional free speech protections, the statute now appears to cover not just vendors of goods and services but, in the eyes of most lower courts, almost any periodically repeating internet actors, including bloggers.
TAS - Washington. A new bill extending publishers' copyrights passed the Bundesrat, the upper legislative body in Germany, on March 22, 2013. When it becomes effective, search engines and news aggregators may use coyright protected content only to a small, vagely defined extent.
The essay Leistungsschutzrecht for German Print Media -- An Ancillary Copyright Protection by Felix Gebhard examines the new bill. The author describes its background, developments and future impact on business for the English-speaking reader.
FG - Washington. Arbitration has gained significance within the United States and internationally. This form of alternative dispute resolution without public hearing and jury but before expert panels provides numerous advantages, especially in the field of business law and international law.
As a German law student intern in Washington, D.C., Tobias Schäfer has analyzed in his essay Varianten der Arbitration in den USA the various forms of arbitration in American law. His overview can serve as a useful reference for American lawyers wishing to suggest a German-language briefing to their foreign colleagues.
TAS - Washington. The federal constitutional court in Germany, Bundesverfassungsgericht, in Karlsruhe had to decide whether §257c of the Code of Criminal Procedure regulating plea agreements since 2009, would violate constitutional due process as well as the presumption of innocence and other principles.
In its March 19, 2013 decision, docket number BvR 2628/10, the court blessed §257c. Although the application of the statute by courts lacks constitutional guidance, the law itself is constitutional, because it preserves the constitutional rights to an acceptable extent.
All informal plea bargains which do not strictly follow this provision, however, are unconstitutional. In the three cases examined by the court, it identified violations of plea bargaining procedures, such as the right to a fair trial, and reversed the judgments.
CK - Washington. Facebook's name policy applied to German users is governed by Irish, not German, law, an administrative law court ruled on February 14, 2013. A German privacy agency had ordered Facebook to open its name policy to pseudonyms, see Injunction Against Facebook Name Policy.
Facebook obtained temporary relief after informing the court in the state of Schleswig Holstein that its operations are run by an Irish branch that is subject to, and complies with, Irish privacy law.
By contrast, Facebook's German facility is limited to advertising sales and marketing. The court agreed, in the matter 8 B 60/12, 8 B 61/12 recited in a German-language report by the Juris law database service.
CK - Washington. Google Plus' clear-name policy may infuriate users, but Facebook irked the data protection and privacy agency in the German state of Schleswig-Holstein. On December 17, 2012, it announced injunctions against Facebook's Irish and American entities, arguing that its prohibition of screen names violates German law.
In its press release ULD issues orders against Facebook because of mandatory real names, the agency recites, in English, its and Facebook's positions. The press release contains links to the German-language text of the injunctions.
The agency believes that Facebook in Ireland hides the wrongdoing of Facebook USA and should not. Facebook is said to argue that the applicable German law, section 13(6) TMG, violates European directives. Both parties seem bent on a clarification of the applicable rules by German and European courts.
BSS - Washington. The legal issues arising from sharing of copyright-protected files over the internet pose a constant challenge for the law, and courts have struggled with it for some time. In the context of minors' activities, the German Supreme Court in Civil Matters in Karlsruhe ruled on November 15, 2012 in favor of the parents of a 13 year old boy who in lower court decisions were held responsible for neglecting their duty to supervise the minor and, therefore, held liable for damages to the music industry under §832 of the German Civil Code.
Investigators found file sharing programs called Morpheus and Bearshare on the son's PC and a Bearshare icon on the desktop. Although the parents had installed a firewall and used a security program to prevent the installation of new software, the lower court held the parents liable: They should have conducted monthly inspections of the computer, such as by looking for new icons and installed software.
The Supreme Court, Bundesgerichtshof, developed a more realistic approach and relieved parents from burdensome obligations. Assuming the minor is normally developed and tends to follow rules, parents act with sufficient diligence by advising their child of the illegality of filesharing. Additional duties to monitor online activities arise only with good cause.