Web 2.0, Social Media & Law

Social networks like StudiVZ, XING & co repeatedly interfere with data protection – partially self-inflicted.

The operators of such platforms naturally have to do with a great number of sensitive data and information of their users. After all, the users generate optionally comprehensive personality profiles about themselves and reveal particular types of personal data in the networks. They also leave permanent data marks in the forums. In contrary to the business network XING, other social networks like StudiVZ and SchülerVZ contain hazards beyond that. Users leave comprehensive (partially private) picture material in photo albums and partially abstain from their right to one’s own picture when linked to pictures by third parties.

The great numbers of registered users demonstrate the high acceptance of these social networks. Since the beginning of this year the networks have – comprehensibly - increasingly commenced with monetarization efforts whereby especially the great amount of information about their users and hence the possibility of target-group-specific advertising is expressed.

Social Networks and Data Protection

Clearly, these networks offer a special additional value not only to the users but also to the advertisers.

However, the past has shown that users do not accept everything having to do with them or their data. Since the data protection policy indeed offers possibilities to operate such networks conform to data protection and the sensitivity concerning this topic is increasing more and more, one should advise the operators of such communities to consider such issues regarding privacy policies within the scope of their business models, as well. Perhaps this criterion will also be a factor to keep or to attract new members.

In this regard the so-called “Duesseldorf circle” has shortly published a decision regarding the configuration of social networks, that are compliant with German data protection law. The “Duesseldorf circle” is an informal association of the highest supervisory authority which watches over the compliance with data protection in the non-public area. During the workshops, a regular exchange of the latest nationwide issues concerning data protection in the economy takes place.

Continue reading "Configuration of Social Networks Conform to Data Protection in Germany and Europe"

Some month ago Facebook has been coming under fire not only due to various data protection accidents but also due to altered privacy adjustments concerning the publication or the disclosure of data and information entered by the users.

In the mean time, American politicians have been acquainting themselves with the topic (amerikanische Politiker dieses Themas an) and are threatening legal sanctions against the companies more or less vigorously. And indeed: Facebook has, within a short amount of time, planned alterations to take effect that further extend the use of entered information in the platform.

Especially the declaration to impart profile information to certain “pre-approved” websites and applications of third parties has caused a stir.

Moreover, if one considers the complex navigation with more than 50 setting possibilities and therewith more than 170 alternative privacy settings on Facebook (clearly presented in the arcticle of New York Times), besides the complexity, one recognizes that the basic setting of many privacy functions accept an opt-out but do not obtain the respective approval (in the sense of an opt-in) of a specific operation in advance. With that said and the effort necessary for the user if he wants to respectively change settings, Facebook had to face up to the question whether one actually wants to dedicate the control to the user or wants to primarily keep the control over decisions concerning data operation (for economic reasons).

The past alterations on Facebook clearly present the target course of the company, namely to create the standard to make the data of their users accessible for the public or moreover to also impart data to “pre-approved” websites and applications of third parties.

Since the topic is also being discussed controversially in Germany, it’s worth taking a closer look at to what extent the general settings and the measures of Facebook are even still conform to the privacy policy in Germany – especially that of the German Teleservices Act and the Federal Data Protection Act.

Continue reading "Facebook and Data Protection – Legal Classification of Contents in Social Networks"

By the 30th of December 2008 miscellaneous alterations in the German Act against Unfair Competition (GERMAN UNFAIR COMPETITION ACT) were made for the translation of various European directives (including Richtlinie 2005/29/EG über unlautere Geschäftspraktiken zwischen Unternehmern und Verbrauchern). Alongside individual restatements of the Law, of which the effects will be briefly outlined subsequently, especially the new implemented so-called “black list” is to be introduced ("Schwarze Liste"), which lists 30 business operations in relatively concrete terms that are always prohibited and therewith can also be admonished amongst competitors.

Many of these explicitly presented statements of facts, which justify not only an injunctive relief but also with respective fault a damage claim amongst competitors, could be relevant especially concerning marketing measures in the internet and also the new possibilities of social media marketing or also of viral marketing, which make online-marketing more and more interesting. We can only hope that the legislature has not formed too great obstacles for these exciting new marketing tools with these new regulations.

The aim of the European directive and therewith also of the translation of the following regulations into the GERMAN UNFAIR COMPETITION ACT was among other things to harmonize and standardize the issues concerned within the EU member states. This is to facilitate the border-crossing economic transactions (and therewith also the internet business) and to make sure -at least partially- that an entrepreneur can assume that respective standards are also complied in other European member states.

Continue reading "New Marketing - and Advertising Law in Germany - Current Alerations of the German Act against Unfair Competition and their Effects"

The regular analysis of the behaviour of visitors is an elementary occupation of many webmasters, shop hosts and even bloggers, who want to be successful.

Many of them use different tools such as google analytics, statcounter, etc, which offer a vast variety of possibilities, to not only get to know a lot about the behaviour of users but also about the user himself. Most of them even protocol and thereby save the IP-address of users as if it was the most natural thing to do.

The LG Berlin recently decided (judgment of 6 September 2007 – case docket number 23 S 3/07) that any storage of IP-addresses or any other personal data that exceeds the actual time of the visit infringes § 15 Telemediengesetz (German code on media law in the following referred to as ‘TMG’). This judgment, as well as preceding ones, did not only cause a great uncertainty amongst the persons concerned as to what was still legal according to data privacy law but also led to fears in respect to the evolution of a new wave of warnings.
At least in respect to the latter an all-clear signal can be given – as will be explained in the following.

However, it remains questionable whether this judgment of the LG Berlin, which affirmed the judgement of Ag Berlin (5 C 314/06) insofar, heralds the end of any storage of IP-addresses. As the storage of IP-addresses is not only used in respect to the setting-up of logfiles but also in respect to most statcounters, such as the very popular google analytics, the following shall demonstrate the basis for the judgements of the two Berlin courts, the consequences of these judgments for the further use of such tools and how this issue should be addressed in the future.

Caused bey a recent article in the well known Zeit Online (which referred to my German blogpost), this issue has arrived also in the rest of Europe an the US as Techcrunch reported on this. This matter once again shows, that in Europe many legal issues are judged different to the US. Especially copyright and data protection are highly relevant for any approach of the European market. Therefore online shops, Social Networks and other Web 2.0 platforms approaching the European market or single countries should have an idea of the relevant European and national legal standards to limit possible risks regarding liability and administrative fines.

Continue reading "Is it legal to use Google Analytics - Data protection in Germany"

After my German blog on topics relating to "Web 2.0 & Law' , which I have started in December 2006, has found quite some interest and regular readers I thought it might be a good idea to start a simar blog in english reviewing the situation on this topic in Germany and Europe. This assumption was recently confirmed by some english speaking clients and readers, who asked if I could write my posts in English. So now here it is my new blog in english.

To new readers - first of all - I shortly want to introduce myself:

I am an IP/IT lawyer working in the international Stuttgart based law firm Diem & Partner. Since three years my practice focuses on legal advice of internet projects, especially what is regularly understood under Web 2.0, in all kind of matters such as trademark, competition, copyright, liability and privacy law but also general ecommerce issues. Due to some recent court rulings especially user generated content issues and privacy protection play a big role here in Germany. Although my focus as a German lawyer lies on national legal issues, I also watch and advise clients regarding European and international problems.

Continue reading "New Weblog on German and European Internet Law"