Reed Smith Newsletters

Table of contents:

  1. Strengthening fair competition - changes to the law against unfair competition
  2. Cologne Regional Court on the broad concept of the right to access (in court)
  3. EUR 14.5 million data protection fine lifted and now appealed
  4. Rostock Regional Court on obtaining cookie consent
  5. Munich Court of Appeals on real name use in telemedia
  6. Frankfurt Regional Court on drone photos covered by copyright freedom of panorama

Reed Smith proudly announces Tech Law Talks, a podcast channel presenting in-depth, practical observations on tech and data legal trends that practitioners encounter every day. Tune in for regular discussions led by the firm’s technology lawyers about the legal and business issues around data protection, privacy, and security; data risk management; intellectual property; social media; and more.

Authors: Thomas Fischl Ramona Kimmich Andreas Splittgerber Sven Schonhofen Christian Leuthner Caroline Walz 

1. Strengthening fair competition - changes to the law against unfair competition

by Dr. Thomas Fischl

The Act to Strengthen Fair Competition only came into force on December 2, 2020, and yet there is already another amendment to the German Unfair Competition Act (UWG) on its way, the Act to Strengthen Consumer Protection in Competition and Trade Law. The aim of the reform of the UWG in 2020 was, in particular, to put a stop to (allegedly widespread) abusive enforcement of the law among competitors. In 2022, it is now planned that consumers will be entitled to compensation for damages in the event of culpable violations of consumer-protection provisions of the UWG by companies. Authorities will also have the option of imposing a fine based on turnover. New regulations are also planned for the labelling of influencer advertising.

Conclusion: Due to the quite far-reaching planned regulations, we can still expect a "headwind" in the legislative process. It will be interesting to see which points will make it into the new law.

2. Cologne Regional Court on the broad concept of the right to access (in court)

by Ramona Kimmich

On November 11, 2020, the Cologne Regional Court ruled that the right to access under article 15 of the GDPR covers mere meeting minutes and telephone notes (docket no.: 23 O 172/19). This judgment is in line with the recent case law on the right to access. In addition, the motivation for claiming the right to access such as ‘pre-trial discovery’ on a detour via data protection law was irrelevant and may not limit the right to access.

Conclusion: The supervisory authorities typically take a differentiated view of the scope of the right to access and possible restrictions in light of the legislative aim. The judgment of the Cologne Regional Court illustrates a contrary trend in case law. Apparently, the rule of thumb is broad interpretation and almost no significant restrictions. From a practical point of view, it would have been helpful for the court to clarify whether the right to access only includes statements about a data subject or also by a data subject.

3. EUR 14.5 million data protection fine lifted and now appealed

by Dr. Andreas Splittgerber

In 2019, the Berlin Data Protection Authority fined a German real estate organization (Deutsche Wohnen) EUR 14.5 million, but the fine was lifted by the Berlin Regional Court a few weeks ago. The fine was lifted as the Berlin Data Protection Authority only showed a data protection infringement (failure to delete data) and not the responsibility for this failure by a specific individual within the organization. The prosecution has appealed this court decision. It is likely that the case will be referred to the European Court of Justice (ECJ), as other EU-jurisdictions do not require this element of individual fault.

Conclusion: Until the case is decided by the appeal court and potentially the ECJ, organizations should thoroughly assess their bandwidth of defences, including showing that individuals complied with their duties.