Editor: Clemens Kochinke
Attorney and Rechtsanwalt
Washington, DC, USA

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Ranking Portals: Required Privacy Consent
Aug 14, 2019
CK - Washington.   The data of physicians involuntarily listed in ranking databases for patient-facing internet portals has been the subject of several court decisions under German data protection law and the EU General Data Protection Directive. The latter was implemented in Germany as the Datenschutzgrundverordnung, DSGVO, and has now been applied to the same issue: May such a portal list physicians' data without their consent, permit patients to add evaluations, and add its own advertisements sold to competing physicians?

In 2018 and before the DSGVO, the Supreme Court in Civil Matters had ruled in the matter VI ZR 30/17 that such listings are compatible with the old data protection law as long as the forum maintains a neutral representation of information. The balance of privacy interests and constitutional free speech tipped in favor of free speech.

In the recently-published decision of the Bonn district court in 18 O 143/18, the same portal was ordered to remove all data and evaluations of the plaintiff-physician. The court also issued an injunction to prohibit the inclusion of the physician in the database and portal as long as the numerous neutrality factors listed in the opinion were being violated. Among other factors, the court explained that offering paid subscriptions to physicians, which allows them editorial control, while displaying such information and advertisements next to profiles of non-subscribing parties is not information-neutral. Under the March 28, 2019 judgment, the balance of interests tips in favor of privacy.

Cross-border Surrogate Pregnancy: Who is the Mother?
Apr 23, 2019
CK • Washington.   A surrogate mother in the Ukraine bore the child of a German couple. Shortly after the birth, it brought the child to Germany. Which law applies to the issue of who would be certified as the mother for legal purposes? On March 20, 2019, the German Supreme Court, Bundesgerichtshof, decided. The facts point to the application of German law.

Under it, the mother is the person who gave birth to the child. Ukrainian law and the intentions of the parties may have been different, but conflicts of laws rules point to the applicability of German law. As a result, the German mother would need to adopt the child as her descendant in order to become the legal mother of what evolved from her egg and her husband's sperm, the court ruled in the matter XII ZB 530/17.

Chat with Court or Mandatory Presence?
Jan 04, 2019
CK • Washington.   The German constitution grants courts flexibity in ac­com­mo­da­ting parties with special needs. Distance-chatting with the court instead of a physical pre­sen­ce falls outside of the constitutional bounds, however, the Supreme Con­sti­tu­ti­o­nal Court in Karlsruhe announced with a January 3, 2019 press release and the simul­ta­ne­ous pub­li­cation of its November 27, 2018 opinion in the matter 1 BvR 957/18.

The court found the accommodiations provided by the lower court sufficient: Advance submission of material, representation by counsel, and use of a computer in the court­room to communicate via a chat-like protocol. Plaintiff's additional demand to chat with the court from his home would violate other constitutional principles, im­me­di­a­cy and transparency, and unduly stress the limited resources of the judiciary. At­tor­ney Ma­ri­an Här­tel blogs about a similar case where an autistic client complied with the sum­mons, appeared, and--due to illness-induced lack of control--be­ca­me phy­si­cal­ly ag­gres­sive in response to statements from the opposing party: Gerichtsprozess via In­ternet-Chat.

Recently Translated German Law Source Documents
Oct 25, 2018
CK - Washington. The German Law Archive--unaffiliated with the German American Law Journal--circulated an update of its archive on October 25, 2018, listing the following new entries from the Federal Constitutional Court in Karlsruhe:
BVerfG 17 January 2017: 2 BvB 1/13, on the application of prohibition of the National Democratic Party.
BVerfG 10 October 2017: 1 BvR 2019/16, on gender identity.

The archive also added an appendix to the previously published translation of the Road Traffic Regulations. The archive offers a subscription service.

Republishing an Internet Photo Without License
Aug 08, 2018
CK - Washington. Under German law, a photographer authorized a travel website to publish one of his photos. A student copied the photo and integrated it into a school paper. The school published the paper with the photo on the internet. The photo­gra­pher sued the state for damages under copyright law. On August 7, 2018, the Euro­pe­an Court of Justice in Luxembourg as the final appeal decided the matter under Ger­man law and the E.U. copyright harmonization regulations.

The court found in favor of the plaintiff after the German Federal Supreme Court for Civil Matters in Karlsruhe had referred the matter to it. The fact that the travel website does not restrict visitors will not reduce the right of the copyright owner to control which permissions to attach to his copyrighted work. The republication by the state-run school is unau­tho­ri­zed because every website addresses a new audience. A copyright owner may have a particular audience in mind when granting a license; publication to another audience requires a new license -- at the owner's discretion.

The court distinguished the republication from linking to the original publication. It states that linking is an essential fea­tu­re of the the world wide web. Linking is a fea­tu­re that supports the essential purpose in harmony with copyright law, while co­py­ing and republishing frustrates that harmony, see (a) Press Release Land Nordrhein-Westfalen / Dirk Renckhoff (b) Application and Decision ECLI:EU:C:2018:634.

Invoicing Germany: AirMail or EMail?
Mar 04, 2018
CK - Washington. Bills used to be mailed, and airmail would take four days. With the onset of scannable invoices and the increasing acceptability of electronic mail, email became the more efficient mo­de of transmission. However, some recipients believe scans to be incompatible with tax and accounting requirements and insist on a mailed original invoice. A German court re­cent­ly held an original unnecessary: An emailed scan is acceptable under the tax rules it usefully cites.

A customer had claimed a right of retention based on the alleged insufficiency of an emailed scan of an invoice, arguing that only the original could render the invoice due and payable. The Aachen District Court disagreed and on January 9, 2018 issued its de­cision under docket number 41 O 44/17, available in German from the North-Rhine-West­fa­lia justice portal. The court lists the applicable tax regulations as well as court de­ci­si­ons including a 2017 ruling by the Supreme Court for Tax Matters.

Recognition of Judgment with Statutory DMCA Damages
Feb 23, 2018
CK - Washington. Statutory damages under the Digital Millennium Copyright Act can have a punitive effect, resulting in a denial of recognition in a foreign court where the legal system finds punitive elements incompatible and grossly violative of civil action principles, a German court decided in response to a petition to freeze assets of a Ger­man company in favor of a U.S. company that had obtained a default judgment for some $8 million in California under the DMCA.

The Leipzig district court explained on February 19, 2018 in docket number 05 O 3052/17 -- presumably, per defendant's counsel, Marian Härtel, Blizzard En­ter­tain­ment Inc. v. Bossland GmbH -- that a recognition matter does not allow the Ger­man court to replace its judgment with that of the foreign court. It would need to re­spect the international principles on recognition which include public order/ordre pub­lic con­si­de­rations. In this case, the default judgment lacked any explanation of the as­sess­ment of statutory damages; the plaintiff had opted under the DMCA to forego ac­tu­al damages; the number of alleged violations was a mere estimate; and the total of ag­gre­ga­ted da­ma­ges reached an extreme with punitive character.

The court considered American analyses of compensatory damages law as well as of pu­ni­tive, exemplary and statutory damages law, concluding that statutory DMCA da­ma­ges can, and in this case do, contain a degree of punitiveness which bars recognition as an incompatible form of damages. Noting that the U.S. default judgment stated that the damages award­ed we­re not punitive, the court analyzed that statement with a result di­stinguishing the elements of a punitive nature in Germany from that in the United Sta­tes.

German Law Firms Fear Compromised IT Systems
Dec 26, 2017
CK - Washington.   For years, the federal legislator and the mandatory federal bar prepared German lawyers for the unified digital day: On January 1, 2018, they are supposed to use a new e-filing system with courts and agencies. BEA, the special attorneys digital mailbox, was planned to be super-safe and secure.

Many attorneys had misgivings over the quality of the JAVA-based software, the user interface, the sufficiency of supporting central server systems for the onslaught in January, and the lack of features enabling multi-attorney firms to efficiently work with the system.

The day before Christmas Eve, all dreams were shattered when news circulated widely that the Bar as administrator of the system had not only retracted security certificates under false pretenses but also instructed all lawyers to install a new security certificate which includes both the public and the private keys, thus rendering vulnerable all systems with the diligently-installed new certificate.

Over the holidays, the news spread even wider, and by now, any decently-qualified hacker will know how to infiltrate the IT systems of many German lawyers. The Bar has limited its response to turning off the system for maintenance and issuing a misleading press release. Whether and how many law firms have suffered attacks or losses as a result of the incredible failure of the Bar is presently unknown.

Privacy: Data Collection, Storage, Use, Sharing and Loss
Sep 28, 2017
CK - Washington. The continued Equifax data breaches that by now affect half the Ame­ri­can population puzzle consumers who do not know if their financial and per­so­nal da­ta are lost. By contrast, Germans and most Europeans benefit from data trans­pa­ren­cy laws designed to protect their privacy and guide all who commercially collect, sto­re, massage and share data. A new European data directive, effective May 25, 2018, go­verns rights and obligations relating comprehensively to such data activities.

Consumers will receive detailed information on the intended activities when granting companies access to their data. They will receive additional disclosures after a com­pa­ny stores data and intends to use it for other than the original purposes. Dis­clo­su­res to con­su­mers must be clear and intellible for a lay person. Technical or le­gal jar­gon in­com­pre­hensible to average consumers will be outlawed: The binding re­gu­la­ti­on even sug­gests 15 words per sentence, separated by not more than one com­ma. Information must be provided free of charge to the person who owns it. That alo­ne is a far cry from the practices of some American data hoarders who persistently ig­no­re what a Secret Ser­vi­ce director advised more than a decade ago: Don't hoard data be­cau­se they leave you and all Americans vulnerable.

Regulation (EU) 2016/679 on the protection of natural persons with regard to the pro­cessing of personal data and on the free movement of such data, known in German as Datenschutz-Grundverordnung, lists information and reporting requirements and may increase burdens on entities that process personal data in any way. The above dis­clo­sure requirements may be more difficult than some of the other obligations, but en­ti­ties with prior exposure to the data protection directive 95/46/DC which will ex­pi­re can build on their experience.

Art. 21 defines a consumer right to object meaningfully to the collection of data, and Art. 35 requires the notification of consumers following a risk-intensive data breach. A key objective is the assurance of disclosures at the earliest possible time and by active con­duct of the data collector and processor.

In addition to active disclosures, consumers have a right to passive or responsive ac­ti­on by the data holders. The latter must respond to consumer inquiries about data held or transferred as well as requests to transfer data.

The European Union expects to achieve additional transparency and compliance by esta­bli­shing reporting requirements. Beneficiaries may be government agencies but third par­ties may also benefit, such as under the right-to-forget rules in Art. 17(2) about expunging published data.

The regulation may be implemented differently in the various E.U. member states. What­ever the national implementation, companies involved in the collection, sto­ra­ge, processing and dissemination of consumer data need to consider the fun­da­men­tal-right statement at the beginning of the new regulation:
The protection of natural persons in relation to the processing of personal da­ta is a fundamental right. Article 8(1) of the Charter of Fundamental Rights of the European Union … and Article 16(1) of the Treaty on the Func­tioning of the European Union … provide that everyone has the right to the pro­tec­ti­on of personal data concerning him or her.
Germany has some of the strictest substantive and procedural data protection sys­tems, and the E.U. update will likely enhance the comprehensive consumer data sche­me. This summer, German law journal Kommunikation & Recht published some articles from a conference on data protection on the regulation, including Transparenz als Her­aus­for­de­rung: Die Informations- und Meldepflichten der DSGVO aus Unternehmens­sicht by attorneys Michael Kamps and Florian Schneider.

Privacy: Lawyers to Outsource Cloud, Office Services
Sep 24, 2017
CK - Washington.   Beyond the confines of privacy laws, criminal law and professional codes constrain the disclosure of data by lawyers and other professionals. In light of §203 of the Criminal Code, professionals may be prosecuted for outsourcing janitorial work, secretarial help and certainly uploading client data to cloud services.

On September 22, 2017, the second chamber in the German parliamentary system, Bun­des­rat,composed of representatives of the 16 states, consented to a change al­rea­dy passed in the Federal Diet, Bundestag, in Berlin. The long title of the new statute, Ge­setz zur Neuregelung des Schutzes von Geheimnissen bei der Mitwirkung Dritter an der Berufsausübung schweigepflichtiger Personen, is descriptive: Statute to up­da­te the protection of secrets with the participation of third parties in the exercise of the pro­fes­si­on by per­sons bound to secrecy.

The statute amends §203 and guides access to data by employees and third parties who assist professionals. Such persons will be subject to the same constraints as the professions that engage them, for disclosures of protected information learned in pro­vi­ding their services. In addition, the statute imposes on the professionals certain ob­li­ga­tions to safeguard the information in relation to their help.
About the American Edition
The German American Law Journal has been available in an American Edition and a German edition called US-Recht auf Deutsch for many years and had been published in print in the 1990s.
Links to the PC versions:
American Edition
US-Recht auf Deutsch