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added: Tue, 27th September 2005 | 1246 views | 0x in favourites
feed url: http://recht.us/amlaw/index.rss
German law in English
CK - Washington. Instead of doing away with the ill-conceived identification requirement for active users of the Internet, the Berlin Department of Justice provides a guide on compliance with the underlying statute, TMG, and the suggested style of publishing identificying information on web sites. On October 7, 2008, the Attorney General also issued, with some pride in her lines, a press release to the requirement which Germans call Impressum.
The department's Guide to the Identification Requirement, published only in German, links to the statute which establishes the requirement for commercial users of the Internet and three sub-guides on (a) why the identification is sought; (b) how to meet the requirement; and (c) what more one can do, such as using seals of organized approval.
The identification requirements is hotly contested in German courts but the rationale is not. For the first reason, the Attorney General calls her guidance non-binding. The second aspect relates to the purported benefit of consumer protection on the mistaken belief that fraudulent vendors would properly identify themselves and Internet user information would not fall more easily victim to phishers, stalkers and other criminals by way of forced disclosure of personal, contact, tax, corporate, supervisory authority and banking information.
Chilling free speech is another topic on which A.G. Zypries remains silent. The identification requirement is generally acknowledged to have extraterritorial effects and is construed by courts to also cover certain non-commercial activities on the Internet.
© German American Law Journal :: Washington USA
CK - Washington. Blawg Review #180 at Law Pundit provides a comprehensive overview of German-American issues. President Reagan proclaimed German-American Day in 1987. The Blawg Reviews are of more recent vintage. Andis Kaulins assembled an impressive amount and quality of information on German-American relations with an emphasis on law and blogs.
© German American Law Journal :: Washington USA
CK - Washington. German employment law may be one of the neglected practice areas, in terms of English-language coverage.
In the international context, the statutes and precedent on German employment matters, Arbeitsrecht, assume a somewhat unique position, however, at least from a German perspective. Germany believes that her legal system causes few, if any, extraterritorial effects. Employment law proves the exception. German law can easily conflict with American law in employment matters, and its extraterritorial reach is undeniable.
Berlin attorney Jessica Ohle provided an overview of German compensation rules and practices in English, in her note Recent Trends in German Employee Compensation, 17 German American Law Journal, on October 2, 2008.
© German American Law Journal :: Washington USA
CK - Washington. Klaus Lederer, a German manager convicted in Germany resides in Florida. In a German court, he received a suspended jail sentence and an order for 1,000 hours of community service, the German law blog reports. The Florida community may be served, the court allowed.
A less curious and more serious aspect of the conviction is the crime: Lederer failed to file timely for bankruptcy. So serious, in fact, that the sentence is for the suspended 18 months imprisonment, the community service and a fine of 250,000 Euros.
Lederer admitted the crime, so, presumably, he knew about the effect of the conviction on his immigration status. A German web site notes that Lederer initiated the proceedings with a voluntary disclosure arising from tax issues under the German American tax treaty. The blog speculates that more German white collar criminals may want to move to sunny places before their sentencing hearing.
© German American Law Journal :: Washington USA
CK - Washington. A practitioner's overview of the new corporate forms that both houses in Berlin approved and may become law by November 1, 2008, is available at the Tysk Ret web site.
Although written for a Scandinavian audience, the German-language presentation of the MoMiGM amendments, as they are known in Germany, is useful for planners and negotiators from common-law nations.
The author, Christian Sagawe, introduces the new corporate vehicles and explains their use with mixed corporate forms which are very popular funding mechanisms in German business.
© German American Law Journal :: Washington USA
CK - Washington. iPhone litigation in Germany is heating up. Monopolist iPhone seller T-Mobile lost its challenge to a July 28, 2008 injunction won by VoIP provider Indigo Networks, operator of the Sipgate service. The injunction bars the traditional phone company from advertising a flat-rate tariff as a free flat data rate when it is in fact limited.
The Hamburg district court found in favor of Sipgate on September 10, 2008 but the written decision in the matter 315 O 360/08 is not published. Indigo had argued that T-Mobile reduces the Internet access speed and prevents customer from using chat and VoIP services. The reported basis for the injunction is § 5 UWG, the German statute against unfair competition.
Also on September 10, 2008, T-Mobile obtained an injunction preventing the German VoIP provider from offering a Sipgate beta software add-on to the iPhone that enables iPhone users from using free Sipgate telephony services. Reportedly, one of the arguments against the Sipgate offer is the term beta used to the describe the development status of the software module. The court is said to consider the term beta confusing to consumers.
© German American Law Journal :: Washington USA
CK - Washington. Censorship in Germany is no more prevalent than censorship is in the United States. Unlike strange FCC rulings, and with rules similar to those in other European countries, Germany requires many writers on the Internet to disclose their identity and many other details. The concept is known as Impressum. There is no groundswell of protest against such censorship because the notion of Impressum is grounded in consumer protection.
The dangers to consumers from the required disclosure of personal information and the dangers to free speech are generally ignored. Almost single-handedly, a Hamburg man has been working on a grassroots campaign to fight censorship in Germany. His target is the press and media law chamber at the Hamburg District Court led by a judge whose last name inspired the intrepid fighter for free speech to invent an -ism and to call his website Buskeismus.de.
On September 12 through 14, 2008, its author, Rolf Schälike,
plans a meeting in Hamburg and has extended an open invitation to all interested in misguided decisions of that chamber and censorship in general. Schälike's focus is not the Impressum requirement.
Rather, he finds fault in the court run by Andreas Buske which has become the forum of choice in Germany for unusual decisions against publishers, including bloggers, and on third-party liability, such as blogger liability for third-party comments. In a country where judges do not enjoy the royal respect that seems to prevail in the United States, the three-day gathering should witness a great deal of unrestrained speech.
© German American Law Journal :: Washington USA
MJW - Washington. A peculiar aspect of German labor law is the letter of recommendation known as Arbeitszeugnis. It reflects part of an employment record issued with an employer and provides details on the term and scope of employment. The letter is also expected to contain information performance and conduct. Generally, prospective employers expect to receive copies of such letters with an application.
Therefore, the exact wording is important and sometimes hotly disputed in employment litigation. As a result, personnel managers have developed codes to convey information in a manner that meets the legal requirements for such letters as laid down by statute in § 109 Gewerbeordnung or § 630 Bürgerliches Gesetzbuch and construed in a long lines of precedent by Germany's Federal Labor Court, Bundesarbeitsgericht.
Employees fear that such codes, including omissions of specific language, may contain kind words that a prospective employer may decypher in a way they themselves do not understand. Others believe that certain carefully crafted nuances may be lost on a less sophisticated HR department.
On August 12, 2008, the Federal Labor Court laid out general guidelines in the matter 9 AZR 632/07. A journalist, dissatisfied with his Arbeitszeugnis, sued his former employer. His complaint focused on a statement regarding his performance and conduct that he thought was deliberately omitted. The letter did not mention his ability to work under pressure.
The court used the case to reiterate the basic principles governing such letters. The employee's performance and conduct must be described favourably and truthfully, Grundsatz der Zeugniswahrheit, it held. Excluding certain elements that prospective employers usually expect from their employees without proper justification collides with this principle.
The omission itself can serve as a secret message which--depending on usages in particular trades and professions--may adversely reflect on the employee. In such instances, an employee may demand from the employer an amendment of the letter of recommendation, the supreme labor court held.
© German American Law Journal :: Washington USA
CK - Washington. The pendulum swings again: At least non-commercial German bloggers are not responsible for third-party comments, a Frankfurt court decided on July 16, 2008 in the matter 31 C 2575/07-01. The decision flies in the face of some rulings from other German courts which came near to imposing a requirement for real-time censorship on bloggers.
Veteran German blogger and fresh lawyer Sascha Kremer published the Frankfurt decision, in German, on his firm site. The judge in the case appeared to understand the medium and the dangers of censorship as well as the remedies applicable to online defamation. For another view, see Mouse Roars, Stops Comments.
© German American Law Journal :: Washington USA
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