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August 2018

EU: New provisions for telecommunication regulation

Following several months of negotiations, EU institutions (Council of Ministers, Parliament, Commission) have agreed on new provisions for the regulation of the telecommunication market, set out in the Electronic Communication Code (Code). Important provisions include investments in the development of broadband and fibre optics in rural areas, the regulation of so-called Over-the-Top services (OTT), and new rules to stimulate investment in infrastructure and 5G networks. Furthermore, the Code generally offers benefits and better protection of consumers, irrespective of whether end-users communicate through traditional (calls, sms) or web-based services by (i) ensuring that all citizens have access to affordable communications services, including universally available internet access; (ii) capping the fees for intra-EU calls; (iii) giving equivalent access to communications for end-users with disabilities; (iv) promoting better security against hacking, malware, etc.; (v) promoting better tariff transparency; and (vi) increasing protection of citizens in emergency situations via emergency communication systems.

EU Parliament rejects Copyright Reform

The EU Parliament voted against the current legislative proposal of a Copyright Reform. The proposal included an obligation for large online platforms to install filtering mechanisms to strengthen the authors’ rights and close the so called “value-gap”. The provision spurred criticism for potentially violating the right to information and freedom of expression. Following the negative vote, the legislative draft will not go in the next round of discussion with other member states. Instead, the Parliament will deal with the draft again in September and will decide which amendments should be made.

The Federal Minister of Justice demands EU regulation of algorithms

Katarina Barley, Germany’s Federal Minister of Justice, called for greater transparency for algorithms, taking the position that if algorithms are used to categorize humans, the persons concerned should have a right to know the parameters determining their categorization and to be able to take defensive measures. This applies not only to algorithms used in credit scoring, but to all kinds of online offers. According to the minister, people should be able to understand why certain offers are displayed to them, and certain institutions should be created to monitor and question these processes. Barley also wants to fight for a respective legislation for the EU and is eager to discuss the topic with other EU countries’ Ministers of Justice.

FCJ: Digital legacy judgement

The German Federal Court of Justice (FCJ) decided that a social media platform has to allow access to the account of a deceased user to the user's legal heirs (link in German). The parents of a 15-year-old girl who died in a train accident filed a claim against the social media platform to get access to their daughter’s user account to search for indications of a suicide. The social media platform claimed that personal communication between users has to be protected. However, the court argued that a digital legacy (online communication) must be treated equally to an analogue legacy (traditional diaries, letters, etc.). Thus, the heirs have a right to access the user account and the communication content therein. This also results from the contract of use between the daughter and the social media platform, which has been transferred to the heirs by way of universal succession pursuant to Section 1922 para. 1 of the German Civil Code (BGB). In the eyes of the FCJ, the hereditability of this contract is not excluded by any contractual provisions, such as the terms of use. Finally, the FCJ rules that the General Data Protection Regulation (GDPR) does not prevent the heirs from accessing the account. As the GDPR only protects the personal data of living persons, the deceased’s data protection concerns are not affected. The processing of personal data of the deceased’s communication partners, which is inherent to the transmission and provision of messages and other content, is permitted both pursuant to Article 6 para. 1 lit. b) GDPR and Article 6 para. 1 lit. f) GDPR.

FCJ: Use of ad blockers is lawful

The FCJ ruled that the use of ad blockers is lawful
(link in German). The court found that the provision of ad blockers is not unfair competition in the sense of the German Unfair Competition Act (UWG). The plaintiff, an international publishing house, argued that the blocking of online ads violates competition law. The FCJ, however, reasoned that the ad blocker provider does not directly target the services of the blocked content provider. In the eyes of the FCJ, internet users decide on the use of the content by installing such blockers. As a result, the FCJ ruled that such an indirect negative impact on the plaintiff’s offer was not unfair pursuant to the UWG. Moreover, the FCJ decided that the use of ad blockers does not qualify as an aggressive business practice pursuant to the UWG, since there is no unlawful influence on the market participants. The publishing house announced its intention to raise a constitutional complaint with the Federal Constitutional Court (FCC).

OLG Cologne regarding press photographs: The German Arts and Copyright Act is applicable besides the GDPR

The German Arts and Copyright Act (KUG) continues to be applicable even after the General Data Protection Regulation (GDPR) has come into effect May 25, 2018. The Higher Regional Court of Cologne (OLG Cologne) commented on the relationship between the KUG and the GDPR (link in German) with regard to the production of personal photographs. The OLG Cologne ruled thatArticle 85 GDPR, which authorizes national laws with derogations from the GDPR in favor of processing for journalistic purposes, covers not only new regulations, but also existing provisions. This results from the fact that Article 85 GDPR does not impose any substantial legal requirements, but merely aims to strike a balance between data protection on the one hand and freedom of expression and communication on the other hand. However, the court held that the KUG does not provide a legal basis for the collection of personal data such as photographs. Therefore, a legal permission pursuant to the GDPR and national data protection laws is always required.

KG: Digital libraries are not required to prevent embedding

The Higher Regional Court Berlin (KG) ruled that digital libraries do not need to provide technical measures to prevent embedding or showing thumbnails of borrowed content. In a dispute between the German Digital Library (DDB) and VG Bild-Kunst (a German collecting society for authors and creators), VG Bild-Kunst wanted to license solely under the condition that DDB prevented the content from being embedded on external sites by using technical means. The KG ruled in favour of the DDB, reasoning that the requirement violates the obligation of collecting societies to generally close accounts according to Section 34 of the Act on the Administration of Copyright and related Rights by Collecting Societies (VGG). Since the collecting society could not prohibit embedding and showing of preview images under applicable copyright law, it could not make licensing dependent on these technologies being technically prohibited.

JEFTA: EU – Japan Free Trade Agreement with data protection focus

On July 17, representatives of the EU and Japan signed the JEFTA Free Trade Agreement
 (link in German). Concurrently, arrangements were made for the mutual recognition of a minimum level of adequate data protection. Japan has undertaken the introduction of additional legal guarantees for individuals in the EU whose personal data are transferred to Japan, which are intended to bridge certain differences between the two data protection systems. These additional guarantees will, for example, strengthen the protection of sensitive data, the conditions under which EU data can be transferred from Japan to another third country, and the exercise of subjective rights of access and rectification. These rules are binding on Japanese companies importing data from the EU and enforceable before the independent Japanese Data Protection Agency (PPC) and the courts. Japan will also introduce a procedure for processing, investigating, and resolving complaints from European citizens about access to their data by Japanese authorities. The procedure will be managed and monitored by Japan's independent data protection authority. Věra Jourová, Commissioner for Justice, Consumers and Gender Equality, said she was very confident that the EU and Japan could set global standards for data protection and take joint leadership in this area.