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Thu, Apr. 30, 2015

Supreme Decision on Print, TV and App

CK - Washington.   While it has many private broadcasters, the German broadcasting market is dominated by a few public stations financed through a media-user fee levied on households. With the advent of the internet, the private media and print press cast a scronful eye on the public broadcasters and lobbied for a statutory prohibition on their competition in applications and internet publications. As a result, the telemedia statute for broadcasters includes restrictions governing, among others, (a) time limits during which over-the-air and cable broadcasts may be made available in apps and websites, and (b) content which may include, in addition to broadcast content, only material related to such content. The latter provision in sections 11d, 11f RStV prevents public broadcasters from intrusions into content areas traditionally held by the print media.

On April 30, 2015, the German Supreme Court for Civil Matters, Bundesgerichtshof, in Karlsruhe decided a dispute between the print and public broadcast media. The print media had claimed a violation of competition law by the public broadcasters which had allegedly bust through their content borders. The defendants argued, however, that (a) their content plans are subject to a three-step review process under the statute, and (b) their plans had gained the approval of the reviewing body.

In the matter known as Tagesschau-App, docket number I ZR 13/14, the court held that the approval of a plan is not a sufficient defense against the plaintiffs' allegations; the lower court must determine also whether the implementation of the plan conforms with the statute. In addition, the court agreed with the plaintiffs that a violation of the telemedia statute can constitute a qualifying violation of law under the German competition statute.
   



Fri, Mar. 27, 2015

Privacy Rights of Co-Pilot and Family

CK - Washington.   Unlike American media, German media do not mention the full name of the co-pilot presumed to have killed 149 trusting passengers and himself in the French alps. Why? Privacy laws.

Personality rights, not data protection laws, govern the mention of persons in the media. These rights are balanced against constitutional guarantees of free speech and press freedom, Art. 5 Grundgesetz = Basic Law, which also outlaws censorship.

A deceased person's personality rights expire with the person's passing. Relatives may invoke this right, however, to suppress gross distortions of the deceased person's reputation. Based on ample precedent, the media need not consider his identity taboo when the person made himself and his life a matter of public interest. The facts alleged today indicate that this exception would apply.

The surviving family and friends can rely on their own privacy rights as well as data protection laws against unwanted intrusions. They are entitled to anonymity. By stating the full name of the co-pilot, the media may knowingly reveal the identity of family and friends and, therefore, become liable for damages. The same rules likely apply to the victims.
   



Wed, Dec. 10, 2014

Non-Poaching Clause in German Law

Sometimes, a landmark case in Germany is exciting to German lawyers, but when translated into English, an implied issue seems more important to an American reader.

Contract penalties are such an issue, which the report Non-solicitation agreements enforceable only in exceptional cases by Hamburg attorney Christian Soltau mentions only in passing. Why skip the issue? In German law, contract penalties are legal. Liquidated damages are conceptually similar but stated differently. The author explains a high court decision in a competition matter that involves a non-solicitation clause. The court decided on April 30, 2014 that clauses impeding the poaching of employees from another employer generally violate §75f of the German Competition Statute.

However, the court carved an exception for special relationships which Soltau explains with helpful advice. His key statement that a two-year time limit should control the exception seems less exciting than the rule that German courts will enforce contractual penalties for breaches of contract. The best news is that American and German practices converge somewhat in this area.
   



Fri, Sep. 05, 2014

New Statute to Stem Late Payment

MJ - Washington.   On August 23, 2014, a new statute, Gesetz zur Bekämpfung von Zahlungsverzug im Geschäftsverkehr und zur Änderung des Erneuerbare-Energien Gesetzes, an Act to Combat Tardiness in Business Payments and to Change the Renewable Energies, became effective.

The objective of the statute is to solve the problem of late payments between business parties and between businesses and public agencies. The federal legislator added a new section, sect; 271a, to the Civil Code, Bügerliches Gesetzbuch of 1900. The provision has a binding effect only on transactions subject to German law. Companies with a payment obligation must pay within 60 days after receiving the promised consideration. When a party is a public entity, payment must be completed within 30 days.

With the new section, the law intends to protect mid-size companies: When they perform their obligation, they should be paid promptly, thus receiving protection against liquidity squeezes. General terms and conditions may not supersede this section. A contractual agreement providing for a longer period is effective only if the agreement is made expressly and does not unfairly disadvantage the beneficiary. This new statute will apply to new contractual obligations. Contracts existing on August 23, 2014 will not be affected unless performances thereunder become due after that date.
   



Sun, Aug. 24, 2014

Uneducated? An Injustice!

Compelling Case for a Right to Education
SF - Washington.   Everyone has the right to education. Article 26 of the Universal Declaration of Human Rights of December 10, 1948.

Education is one of those topics politicians love to talk about. Talk is cheap, though, as Ugo Mifsud Bonnici, former Maltese President and Minister of Education, explains in his latest book An Introduction to the Law of Education. Compellingly, he calls for a debate on the legal framework and conditions of the law of education. Every politician championing education should heed his counsel: One cannot do the right thing if one does not know what the right thing is, and one comes to know what is right through being informed. p. 5.

While the author's main focus is on his home country of Malta, the international reader will find plenty of inspiring insights into the law of education worldwide. While law and education met very late in the development of many societies, the law of education has many roots and commonalities throughout the world. Through an intelligent mixture of history and philosophy, the author examines the influences of state, church, and parents on education. He also presents the overarching role of language as a medium of education and sheds light on teachers' positions in the education system.

Citing Aristotle and Kant and thus placing his deliberations on a philosophical foundation, the author explores constitutions and court decisions from different countries, among those Germany and the United States of America, as well as decisions of international courts and tribunals. He shows where historical differences occurred between countries and regions that are still present in current national legislation and where international pacts and agreements, beginning with the Universal Declaration of Human Rights, aim at constituting common standards of education.

The book's regional focus is on Europe, referring frequently to the Council of Europe, on whose Venice Commission on Democracy through Law the author has served as of 2002. Additionally, the book points to a variety of comparisons between Europe and the U.S. on the law of education. It references to U.S. history and Supreme Court decisions to demonstrate a contrast to European legislation while also emphasizing common principles. We learn how the Prussian educational system served as a model for the American public school system in the 19th century and how European legislation mirrors Supreme Court decisions on minority languages in education. The author highlights the different views of academic freedom between Europe and the U.S., and explains that corporal punishment of children is not legally banned in all U.S. states, while the European Court of Human Rights in numerous rulings declared it a violation of children's rights.

Based on his lifetime achievement, the author closes with a passionate plea for a profound legal education in national, European, and international law for every citizen as a keystone for democracy.

Without a doubt, this book is a must for teachers, politicians, and lawyers in the field of education, as it refrains from tedious stock-taking and analysis. En passant, the reader is taken on a journey through Maltese and European history, meeting the grand thinkers and statesmen of their time. A captivating book I highly recommend.
An Introduction to the Law of Education
Dr. Ugo Mifsud Bonnici
ISBN: 9789990945751
400 pages - 25.00 Euros

   



Tue, May. 13, 2014

Anti-Google Ruling has German Jurists Flustered

CK - Washington.   On May 13, 2014, the European Court of Justice invented an obligation to drop old newspaper announcements of legal actions from search engines under Article 4(1)(c) of European Union Directive 95/46, when it ruled on Google Spain SL, Google Inc. v. Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzalez in favor of a data protection agency and a Spanish defendant who did not want the public to discover a 1998 notice of attachment on his property through the plaintiffs' search engine.

Among German lawyers and law commentators, a heated discussion followed quickly. Some argue that the decision serves privacy interests. Others believe that the court elevated data protection from a run-of-the-mill statute to a European constitutional principle that conflicts with the German and possibly other constitutions.

The court ruled, among other things, on the right of erasure and determined its applicability to search engines. The storage of data by search engines is data processing under Article 2, it ruled. Jurisdictionally, data processing occurs in the E.U. member state where the plaintiff maintains a branch or subsidiary even if such entity is limited to promotion and advertising services.

Even when the original publication was and remains lawful and available, a right of erasure can apply to a search engine while the linked-to publication may remain unerased. Unless public interests outweigh the defendant's interest in privacy and dignity, Articles 7 and 8 of the E.U. Charter may entitle him to seek erasure from the plaintiffs regardless of economic burdens imposed on them. The case is returned to the Spanish court to apply these principles to the facts.
   



Thu, Mar. 27, 2014

German Commercial Law Firms and Practice

PS - Washington.   Recently, the publishers of the annual handbook JUVE's German Commercial Law Firms introduced their 15th edition of the only book of its kind in English which focuses exclusively on German lawyers.

The new edition lists close to 600 German commercial law firms. The catalogue is arranged by states, largest cities, international law firms, and practice areas. The law firms are chosen by a group of journalists who perform research on such firms. The handbook is useful for foreign lawyers seeking referral firms or cooperation partners. The printable version of the book is available for 59 Euros.

A very practical handbook introduces readers to the legal market and practice of law in Germany: The Legal Market in Germany: A 360 Degree Perspective by Markus Hartung and Thomas Wegerich. German Law Publishers focuses on high quality summaries of the key topics of German company, corporate, tax and labor law as well as other legal business law topics. The hardbound book costs 98 Euros.
   



Sat, Jan. 18, 2014

German Law: Ready for Drones

CK - Washington. With statutory amendments to the aviation act in 2012 and regulatory implementations in 2013, Germany is somewhat ahead of the United States in establishing a legal framework for the civilian and commercial use of drones.

The regulations revised after the amendment to the federal aviation statute classify drones up to a weight of 25 kilograms in section 6(2) as aerial vehicles partially exempt from the demanding standard approval process for aircraft. Section 34 addresses the licensing of drone operators by applying a minimal standard, such as qualifications obtained in a club setting. Section 66 transfers authority for permitting of non-commercial operations to the states, i.e. Länder. Chapter 10 of the regulations addresses the import or transfer of unmanned aerial vehicles, among other aircraft, into German airspace or territory. Section 99 governs the insurance requirements for foreign aircraft and may affect also drones brought into Germany. Section VI (3) of Schedule 1 to the regulations, Luftverkehrs-Zulassungs-Ordnung, contains a rule for the permanent marking of the drone with owner information.

Another overview, in German, of permits, licenses, distances, required insurance coverage and many more practical and legal details, is found in Solmecke, Die rechtlichen Probleme des Einsatzes von zivilen Drohnen--i.e. Legal Issues in the Use of Civilian Drones. The broad overview also covers privacy, copyright, criminal sanctions and data protection laws as they relate to the deployment of civilian drones in Germany.
   



Mon, Oct. 14, 2013

New Improper Business Practices Act

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.
   



Wed, Sep. 04, 2013

No Damages for Victims of Airstrike

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.
   


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Mission

A forum for information sharing in the areas of German and American law, mainly where the two intersect, vary or intrigue.
Editor

Clemens Kochinke, the editor, is a German-American lawyer practicing in Washington, DC.

Authors
CK=C. Kochinke
SR=S. Röttger
JN=J. Nebel
MP=M. Perz
WM=W. Marx
CS=C. Schosser
JG=J. Gehrke
EW=E. Wagner
TD=T. Dardat
SW=S. Wagner
FS=F. Schlaga
AC=A. Connolly
SWM=S.Wolff-Marting
ASG=A.Schnee-Gronauer
CS=C. Schröder
SK=S. Kreis
OH=O. Herrmann
MC=M. Czechleba
MS=M. Stoeterau
SSL=S. Laing
WO=W. O'Brien
MAG=M. Götze
HF=H. Förster
CJ=C. Janowski
TS=T. Stanossek
KS=K. Schehl
EE=E. Evans
KR=K. Rissel
LL=L. Lieske
J.G=J. Gierlich
CC=C. Contag
GC=G. Cohoon
MJW=M. Warning
AK=A. Knabe
AKL=A. Langenberg
GKM=G. Knoll-Merritt
NK=N. Kol
AM=A. Maier
TAS=T. Schäfer
FG=F. Gebhard
DJ=D. Jahn
FW=F. Wasl
PS=P. Semmelmayer
SF=S.Förschler
MJ=M.Jahnz
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