Unsolicited email advertising (“spam”) is unlawful and can be pursued by way of a cease‑and‑desist letter. Some lawyers are currently making very aggressive use of this – including a Berlin‑based attorney who, in a cease‑and‑desist letter we have before us concerning unsolicited email advertising, asserts an amount in dispute of EUR 9,000 and, in addition, claims “damages” of EUR 400. Recent decisions of the Berlin courts, however, make it clear that this approach goes far beyond what the case law considers permissible.

Legal background: Email advertising is always an unreasonable nuisance

The starting point is section 7(2) no. 3 of the German Unfair Competition Act (UWG): under this provision, email advertising without the recipient’s prior express consent is always deemed an unreasonable nuisance. The Federal Court of Justice (BGH) and the Berlin Court of Appeal (Kammergericht, KG) have repeatedly confirmed this assessment and clarified that the legislature does not regard the interference with the individual – whether in a private or business context – as negligible. Other lawyers are likewise entitled to defend themselves against such practices.

It is important to note that the courts do not look only at the effort involved in deleting a single email. What is decisive is also the underlying “dangerousness” of the advertising practice – that is, the risk of becoming part of a mass phenomenon. Email advertising is cheap and easy for the sender, whereas for the recipient there is an obvious risk that a large number of advertising emails will significantly disrupt email traffic in the long term. From this, the courts derive a serious interest in injunctive relief – but that interest also has its limits.

Assessment of the amount in dispute: Why EUR 3,000 value (Gegenstandswert) is the “ceiling”

According to the established case law of the BGH, the amount in dispute is determined by the claimant’s interest in preventing further infringements. This interest is assessed on the basis of the so‑called “attack factor”: how serious is the conduct to be prohibited, what scale, intensity and frequency of further interferences are to be expected, and how great is the risk of repetition?​

On this basis, the Berlin Court of Appeal has clearly established in a series of decisions:

• For a single unlawful advertising email, the value in dispute in main proceedings is, as a rule, EUR 3,000.

• It is irrelevant whether the claim is based in law on the general right of personality or on the right to an established and operating business.

• In preliminary injunction proceedings, the value is regularly set at two‑thirds of the value in the main proceedings, i.e. at EUR 2,000.

This approach has developed into settled case law in Berlin. The Court of Appeal explicitly justifies this by pointing out that the legislature always classifies email advertising as an unreasonable nuisance, that the claim for injunctive relief aims at preventing further mailings in the long term (over decades), and that at the same time an appropriate amount in dispute must be found that does not become excessive.​

Berlin Regional Court confirms: EUR 3,000 – no more

This is particularly clear in a recent order on the amount in dispute issued by the Berlin Regional Court (15 T 2/26), arising from the preliminary‑injunction proceedings 21 C 5296/25 eV before the Berlin‑Mitte Local Court. In this order on the amount in dispute, the Regional Court expressly confirmed the line taken by the Berlin Court of Appeal. We have the decision on file.

The court first clarifies that the general principles for determining the amount in dispute apply: the decisive factor is the interest in injunctive relief, which follows from the dangerousness of the conduct and the damage to be feared. It refers to the relevant case law of the BGH and the settled case law of the Berlin Court of Appeal. It then states the crucial point: there is “no reason” to depart from the established case law. For the sending of a single advertising email, the amount in dispute in the main proceedings is therefore to be set at EUR 3,000, so that in preliminary‑injunction proceedings a value of EUR 2,000 must be applied.

This makes it clear that in Berlin, for the typical spam scenario, an amount of EUR 3,000 is regarded as the upper limit in main proceedings. Anything significantly above that requires a special, robust justification in the individual case – for example in instances of mass, systematic infringements or particular circumstances. For the one‑off sending of an advertising email, an amount in dispute of EUR 9,000 is simply excessive.

Cease‑and‑desist letters from lawyers: fees based on EUR 9,000 amount in dispute

Against this background, cease‑and‑desist letters in which a lawyer sets an amount in dispute of EUR 9,000 for one or a few unsolicited advertising emails appear highly questionable. Such a value is three times higher than the standard figure confirmed by the Court of Appeal and the Berlin Regional Court. The effect is obvious: legal fees rise significantly and the financial pressure on the recipients of the warning letter increases. This has little to do with the actual dangerousness of a single advertising email or with the settled case law in Berlin.

From a practical point of view, the impression arises that the aim is less to reflect the real scale of the interest in injunctive relief and more to maximise the amount in dispute. Companies should not be intimidated by such high figures, but should expressly contest them and refer to the current case law.

EUR 400 “damages” – on very shaky legal ground

In addition to injunctive relief and reimbursement of legal fees, the cease‑and‑desist letters also demand “damages” of EUR 400 for the unsolicited email. This, too, is highly doubtful in legal terms.

The Federal Court of Justice has recently made it clear that unlawful email advertising does indeed give rise to a claim for injunctive relief, but does not automatically lead to a claim for (non‑material) damages. A concretely substantiated, quantifiable loss must be demonstrated. Mere annoyance at an advertising email or the minimal effort required to delete it is usually not sufficient.

Flat‑rate claims for EUR 400 without further justification and without a concrete presentation of an individual loss therefore run counter to this case law. In many cases they are not enforceable and – especially in combination with an excessive amount in dispute – can be understood as yet another attempt to increase payment pressure.

Lawyer acting in his own case – no entitlement to a fee for legal services

It is particularly problematic that a lawyer is issuing cease‑and‑desist letters “in his own case”. In its judgment of 12 December 2006 (case no. VI ZR 175/05) on unsolicited telephone advertising, the BGH held that a lawyer can, as a rule, not claim reimbursement of legal fees in straightforward cases if he can handle the matter himself without difficulty. In essence, the court stated that the immediate involvement of a lawyer is not necessary “if he himself has the specialist knowledge and experience needed to deal with the specific loss event”.

Applied to cease‑and‑desist letters in a lawyer’s own matter, this means: even if a claim for injunctive relief exists in principle, an additional, fully recoverable legal fee for the warning lawyer is by no means a given and should be expressly contested with reference to the BGH case law.​

What those affected should do

If your company has received a cease‑and‑desist letter from a lawyer acting in his own case for allegedly unsolicited email advertising, in which an amount in dispute of EUR 9,000 and damages of EUR 400 are claimed, you should note the following:

• Do not sign or pay in haste. Do not sign the enclosed cease‑and‑desist undertaking without review and do not simply transfer the amounts claimed.

• Obtain legal advice. Have the warning letter reviewed by a specialised lawyer – in particular the amount in dispute, the scope of the injunctive undertaking and the claim for damages.

• Contest the amount in dispute. Refer to the settled case law of the Berlin Court of Appeal and the current order on the amount in dispute issued by the Berlin Regional Court, which confirms EUR 3,000 for a single advertising email.

• Reject the flat‑rate damages claim. The demand for EUR 400 in damages is by no means firmly established in law and can be contested with reference to the BGH case law.

• If appropriate, submit a modified cease‑and‑desist undertaking. If a claim for injunctive relief exists in principle, it is often advisable to submit a modified undertaking that reasonably narrows the wording of the injunction but does not recognise excessive payment claims.

Conclusion

Yes, unsolicited email advertising is unlawful and not a trivial matter. Anyone who sends emails without consent risks claims for injunctive relief and costs. But the courts in Berlin have set clear guardrails: for a single advertising email, the amount in dispute in main proceedings is EUR 3,000, and in preliminary‑injunction proceedings EUR 2,000. Inflated amounts in dispute of EUR 9,000 and flat‑rate demands for EUR 400 in “damages” clearly exceed these limits.

Companies should therefore not be cowed by such cease‑and‑desist letters but should be aware of – and make use of – their options for defence. Where unjustified payments have already been made, it should be examined whether they can be reclaime

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Drug or Illegal Substance? The Complex Legal Situation in Ketamine Cases

Ketamine is increasingly causing uncertainty in criminal justice. The substance exists in a legal gray area between the Medicinal Products Act and the New Psychoactive Substances Act. For defendants, this ambiguity can have decisive effects on sentencing.

The Fundamental Problem: Which Law Applies?

Although the legislature included the substance group of arylcyclohexylamine-derived compounds, which also includes ketamine, in the scope of the New Psychoactive Substances Act (NpSG), the priority application of the Medicinal Products Act regulated in § 1 Abs. 2 Nr. 2 NpSG could preclude punishment under § 4 NpSG for trafficking in ketamine.

The substance referred to as “ketamine” by the criminal chamber in case II.2.b of the judgment grounds is – subject to any substance-specific peculiarities not evident from the judgment grounds – a medicinal product pursuant to § 2 Abs. 1 Satz 2 Nr. 2a AMG.

Ketamine as a Medicinal Product: The Medical Perspective

Ketamine is used in anesthesia and pain treatment, the similarly acting esketamine in the treatment of depression; both are prescription drugs.

Ketamine could be a functional medicinal product in composition and mode of action, namely a substance or preparation that can be applied to or administered to the human body to restore, correct or influence physiological functions through a pharmacological, immunological or metabolic effect (§ 2 Abs. 1 Satz 2 Nr. 2a AMG).

No Authorization Required for Medicinal Product Status

A common misconception: The absence of official authorization or registration does not preclude medicinal product status within the meaning of § 2 Abs. 2 AMG. What is decisive is solely whether the statutory requirements of § 2 Abs. 1, Abs. 2 or Abs. 3a AMG are met; retail-typical packaging or labeling, a package insert or a special form of distribution are not required.

Distinction from Synthetic Cannabinoids

Unlike synthetic cannabinoids, ketamine is not exclusively a substance that influences the physiological functions of a person without being beneficial to health. The decision of the ECJ on synthetic cannabinoids therefore does not preclude the legal classification of ketamine as a functional medicinal product within the meaning of § 2 Abs. 1 Satz 2 Nr. 2a AMG.

Ketamine is Already an End Product

It already exhibits all the properties of a medicinal product and apparently requires no further essential processing or preparation step. The possible addition of salts and water for injection purposes enables the injectability of the agent but does not change its effect.

New Ketamine Derivatives and Their Classification

The fact that so-called 2-fluorodeschloroketamine has recently fallen under the scope of the BtMG merely illustrates that (other) substances may also be traded on the illegal market under the designation “ketamine” which, if not subject to the BtMG, could fall under the NpSG due to lack of medicinal product status.

Practical Consequences for Criminal Proceedings

The court’s findings do not address the material form of the ketamine, so the Senate cannot determine whether the ketamine falls under the Medicinal Products Act (AMG) or the New Psychoactive Substances Act (NpSG).

Fundamentally, ketamine can fall under the New Psychoactive Substances Act or the Medicinal Products Act. The substance group of arylcyclohexylamines listed in the annex to the NpSG under number 6 also includes ketamine. Additionally, ketamine is listed in Annex 1 of the Regulation on the Prescription Requirement for Medicinal Products (AMVV).

Confiscation in Case of Procedural Limitation

Dangerous objects discovered during investigations but having no connection to the offense in question are not subject to security confiscation. There is no such connection between the adjudicated narcotics offenses and the ketamine; regarding this substance, the Regional Court limited the proceedings pursuant to § 154a Abs. 2 StPO and thereby excluded prosecution of an offense under the Medicinal Products Act.

Sentencing Framework: Significant Differences Depending on Classification

The legal classification has massive effects on sentencing. While violations of the Medicinal Products Act are generally punished more leniently, significantly harsher penalties threaten under application of the NpSG. The acts can be assessed as commercial importation of a new psychoactive substance in conjunction with aiding and abetting commercial trafficking in a new psychoactive substance pursuant to § 4 Abs. 1 Nr. 1 Variant 1, Nr. 2 Buchst. b, Abs. 3 Nr. 1 Buchst. a Alternative 1 NpSG.

No Threshold Values for “Not Insignificant Quantity”

It is doubtful whether a threshold value for a “not insignificant quantity” is required for ketamine; the statutory wording of § 4 NpSG does not mention such a characteristic – unlike § 29a Abs. 1 Nr. 2 BtMG or § 34 Abs. 3 Satz 2 Nr. 4 KCanG. However, such an approach is at least within the scope of a permissible judicial determination of the appropriate sentence.

Requirement for Expert Assessment

Whether the confiscated, unspecified “ketamine” is a medicinal product or a new psychoactive substance cannot be assessed without further findings. This requires further findings by the trial court, possibly based on a supplementary examination of the confiscated substance by an expert.

Ketamine in Practice: Use and Abuse

Ketamine (hydrochloride) is a white crystalline, water-soluble powder with analgesic and narcotic properties. Ketamine uptake can occur orally or by snorting or can be injected intramuscularly.

While the effect of intramuscular application sets in after a few minutes and lasts 30-60 minutes, the onset of effect with oral intake occurs between five and 30 minutes, with a duration of effect of 1-2 hours. Depending on the dose, the effect is only comparable to a “slight buzz” but can also lead to complete incapacity to act and lack of will.

Ketamine as a Date-Rape Drug

Date-rape drugs are typically sleeping or anesthetic agents that are mixed unnoticed into food or drinks. The substances produce sedation or lack of will. The victims then usually become victims of property or sexual offenses.

Conclusion

The legal classification of ketamine remains complex and case-dependent. The distinction between the Medicinal Products Act and the New Psychoactive Substances Act is not definitively clarified and is handled differently by the courts. For defendants, this uncertainty can present both risks and opportunities.

What is decisive is the exact material composition of the confiscated material. Blanket statements are not possible. Each case requires individual examination with the assistance of expert expertise.

Personal Consultation in Our Law Firm

If you are confronted with a ketamine accusation, you should seek legal assistance early. The legal classification can determine the sentence. Our law firm has extensive experience in narcotics criminal cases and would be happy to advise you on your options. Schedule an appointment for a detailed consultation.

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Indirect Interferer Liability and the Limits of the DSA

1. Introduction

Fake profiles on social networks are no longer a marginal phenomenon; they increasingly affect public figures, companies and institutions. They interfere with core personality rights and confront civil courts with the task of fitting classic instruments such as section 1004 German Civil Code (BGB) by analogy, section 823 BGB, section 12 BGB and sections 22, 23 German Art Copyright Act (KUG) into a liability regime shaped by the Digital Services Act (DSA).

A recent decision of a higher regional court on fake profiles clarifies the liability of social media providers as indirect interferers and shows that the DSA does not undermine the enforceability of civil-law injunctions.

2. Legal Framework at a Glance

2.1 General Right of Personality and the Basic Law

The general right of personality is derived as an “other right” within the meaning of section 823(1) BGB from Article 2(1) in conjunction with Article 1(1) of the German Basic Law (GG). The use of a person’s name, image and biographical details in a fake profile interferes with their social reputation, their self-presentation and their informational self-determination.

Fake profiles that falsely create the impression that the account is operated by the person concerned themselves, or at least with their approval, are therefore qualified as an interference with the general right of personality.

2.2 Right to a Name under Section 12 BGB

Section 12 BGB protects the right to one’s own name, in particular against unauthorised use of the name that causes confusion about attribution. A fake profile operated under the civil name or a characteristic name of the person concerned will typically fulfil these conditions if third parties gain the impression that the person stands behind the profile.

The mere attribution of a profile to a person in the eyes of users is sufficient to trigger the protection of section 12 BGB, provided the appearance of a genuine, authorised profile is created.

2.3 Right to One’s Image (Sections 22, 23 KUG)

The right to one’s own image under sections 22, 23 KUG generally requires the consent of the depicted person. If a photo is used in a profile without consent and this profile impersonates the person, this usually does not fall under any privileged form of use (such as depiction from contemporary history, art or satire).

If photographs of a person are used in the context of an apparently authentic profile, this impairs their self-determination over their own presentation online and violates the right to one’s image.

2.4 Section 823(1) BGB and Section 1004 BGB by Analogy

Section 823(1) BGB acts as a general tort provision covering personality, name and image rights as protected “other rights”. Section 1004 BGB is applied by analogy to establish a strict (fault-independent) claim for injunctive relief against future interferences.

Those affected can assert claims for injunctive relief against the platform operator when the operator fails to act despite being aware of the infringing content. In practice, the claim is based on a combination of sections 1004, 823(1) BGB in conjunction with Articles 1(1) and 2(1) GG, section 12 BGB as well as sections 22, 23 KUG.

2.5 Interaction with the DSA

The DSA regulates liability privileges and due diligence obligations of hosting service providers, but it does not displace national civil law. It does not impose a general monitoring obligation, but it does require platforms to act expeditiously once they become aware of illegal content.

Article 6(4) DSA makes it clear that courts in the Member States remain entitled to issue injunctions that also extend to future identical or essentially similar infringements. National civil law – in particular sections 823, 1004 BGB, section 12 BGB and sections 22, 23 KUG – therefore continues to apply and is framed, but not replaced, by the DSA.

3. Indirect Interferer Liability of the Platform

3.1 Concept of Indirect Interferer Liability

A person is liable as an indirect interferer (mittelbarer Störer) if they are not a direct perpetrator or participant but nevertheless contribute to the infringement in a deliberate and adequately causal manner and breach reasonable duties of inspection. It already suffices that they support or exploit the actions of an independently acting third party if they had both a legal and factual possibility to prevent the infringement.

Liability must not be expanded boundlessly to third parties; therefore, it presupposes a breach of duties of conduct, in particular duties of inspection. Their scope is determined by what is reasonable in the circumstances of the individual case.

3.2 Triggering of Duties of Inspection

Duties of inspection arise as soon as the person concerned lodges a complaint that is sufficiently specific so that the infringement can be affirmed without in-depth legal or factual examination. In the context of fake profiles, this is generally the case where:

• the specific profile is identified by URL and screenshot,
• the identity theft (name, photos, professional details) is described,
• the absence of consent is clearly stated.

If the affected person also points out that their name and likeness are being used in such a way that the profile appears authentic, a manifest violation of personality, name and image rights is evident. The platform must then investigate and take action.

3.3 Application to Social Media Platforms

Social media providers supply the technical infrastructure and enable users to create profiles. They are therefore not the direct perpetrators of the infringement but can be held liable as indirect interferers if they fail to act after being put on specific notice.

If a platform does not respond, or only responds after undue delay, to a substantiated notice, it breaches its duties of inspection and action. From that point on, the DSA’s liability privilege no longer applies and an injunctive claim against the platform operator arises.

4. Scope of the Injunction: Identical and Essentially Similar Fake Profiles

A particularly relevant question is whether the injunction is limited to the specific URLs identified or also covers future identical or essentially similar accounts.

The prevailing doctrinal approach is that the injunction is not limited to the specific URL but captures the infringing conduct in its typical form: the specific infringing act and all essentially similar acts are prohibited. For platform operators this means that they must:

• block or delete the concretely reported fake accounts, and
• prevent future identical or at least essentially similar fake profiles under a different web address.

A new prior complaint by the affected person is not always necessary if the new profiles are identical or essentially similar in content and can be recognised as repetitions of the prohibited infringement without requiring a fresh legal assessment.

5. Risk of Repetition, Urgency and Interim Relief

The first infringement gives rise to a factual presumption of a risk of repetition. This presumption is generally rebutted only by a serious, usually contractual and penalised, cease-and-desist undertaking or by other circumstances that eliminate the risk of repetition.

The mere deletion of the specific fake profiles without a cease-and-desist declaration is not sufficient, particularly since new fake accounts can be created at any time by third parties. Platforms that also take the view that they are not obliged to provide more far-reaching undertakings reinforce the impression that the risk of repetition continues to exist.

Urgency (Verfügungsgrund) is regularly assumed in cases of online personality rights infringements because information spreads and entrenches quickly. Even if the specific profiles have been deactivated by the time of the court’s decision, urgency may persist where the danger of essentially similar infringements is real and only the platform has the technical means to prevent them effectively.

6. Practical Recommendations for Those Affected

6.1 Immediate Steps vis-à-vis the Platform

Those affected should first use the reporting tools provided by the platform and carefully document the infringement. In particular, the following are helpful:

• screenshots of the fake profile showing URL, date and content,
• documentation of the identity features used (name, photo, professional details) and comparison with their official online presence,
• use of specific reporting forms for identity theft or account impersonation,
• precise description of the infringement (identity theft, unauthorised use of name, unauthorised use of image),
• documentation of all platform responses (email confirmations, ticket numbers, response times).

The more concrete the notice, the easier it is to establish an infringement that is “readily apparent” to the platform.

6.2 Involving Legal Counsel and Sending a Warning Letter

If the platform does not respond or only does so after delay, legal advice should be sought. A warning letter with a deadline for deletion and a cease-and-desist demand sets out the legal basis and prepares the ground for court proceedings.

The warning letter should:

• refer to the infringed rights (personality, section 12 BGB, sections 22, 23 KUG),
• describe the specific infringing conduct with reference to the preserved evidence,
• formulate a specific claim for injunctive relief that also covers essentially similar infringements.

In practice, platforms do not always issue a contractual cease-and-desist undertaking, but a court order granting injunctive relief already exerts significant pressure and enables the enforcement of penalties (order measures) in case of violations.

6.3 Interim Relief: Preliminary Injunction

Given the dynamic nature of social media, interim relief plays a key role. In addition to the claim itself, urgency is a crucial condition.

An application for a preliminary injunction should:

• rely on section 1004 BGB by analogy in conjunction with section 823 BGB, section 12 BGB and sections 22, 23 KUG,
• demonstrate the platform’s inaction or delay despite knowledge,
• formulate the requested injunction in such a way that not only the specific URLs but also identical and essentially similar fake profiles are covered.

Courts tend to grant interim relief promptly in clear cases of identity rights violations in order to provide effective protection.

6.4 Strategic Scope of the Injunctive Claim

In practice, it is advisable not to request a completely abstract, general prohibition of “any fake profiles”, but rather to link the claim to the specific infringement and extend it to essentially similar variants. This improves the specificity and enforceability of the injunction.

A typical injunction:

• refers to the specific profiles complained of, and
• extends to profiles that are identical or essentially similar to them, even if they are available under a different URL.

In this way, the scope of protection is sensibly broadened without turning the injunction into an undefined general monitoring obligation for the platform.

7. Relevance for Platform Operators and Compliance

For social media companies, the decision highlights the need to establish clear internal processes for dealing with identity abuse. These include:

• easily accessible and functional complaint channels,
• legally trained teams capable of assessing identity violations,
• technical systems that can detect identical or essentially similar profiles (for example, via image, name or pattern recognition),
• defined response times and documented takedown procedures.

If such structures are lacking, platforms face not only injunctions and penalties but also lasting reputational damage and potentially stricter regulation. The current line of case law makes it clear that platforms cannot hide behind liability privileges under the DSA when they fail to act promptly in the face of obvious identity rights infringements.

Our Law Firm’s Recommendation

Our law firm has specialised for many years in personality rights, media law, IT and data protection law, and represents clients throughout Germany in cases involving fake profiles and other unlawful social media content.

Our specialised lawyers have extensive experience with preliminary injunctions and court proceedings against major platform operators, as well as with out-of-court takedown procedures. In numerous successful cases, we have obtained the deletion of unlawful profiles, far-reaching injunctions (including for identical and essentially similar content) and, in individual cases, financial compensation.

Thanks to our focus on the DSA, the GDPR and platform regulation, we develop a tailor-made strategy for each case – from securing evidence at the outset through to the consistent enforcement of claims in court. Individuals and organisations who wish to defend themselves against fake profiles, identity theft or reputation-damaging content benefit from this concentrated expertise and our many years of forensic experience.

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They have become an integral part of advertising: sounds that we automatically associate with the corresponding goods or services. Unlike normal image advertising, sounds affect our sense of hearing and thus strengthen our perception. Examples include the “Ricola” jingle and the “Tüdeldüdü” jingle used by Telekom. These sounds are already registered as sound marks with the German Patent and Trademark Office. Section 3 (1) of the German Trademark Act lists all signs that are eligible for trademark protection, including sound marks: “All signs, in particular […] sounds […] that are capable of distinguishing the goods or services of one company from those of other companies, can be protected as trademarks.” The sound mark has replaced the audio mark.

What is permitted?

In principle, all perceptible sounds are eligible for registration, i.e., not only musical sounds, but also spoken or sung words and purely noiseless sound images. However, there are exceptions to every rule, meaning that absolute grounds for refusal must also be taken into account for sound marks. The best-known absolute ground for refusal is lack of distinctiveness (Section 8(2)(1) of the German Trademark Act (MarkenG)), i.e. if the sound is not capable of distinguishing the goods or services of one company from those of other companies. This also means that purely descriptive information is never eligible for protection (Section 8 (2) No. 2 MarkenG). This applies in all cases and to all types of trademarks. In the case of sound marks, for example, the simple meowing of a cat cannot be protected for cat food. However, there is another special case to consider with sound marks: sounds that are inevitably produced by the goods or services, i.e., that are necessary to achieve the technical effect, cannot be protected (Section 3 (2) No. 2 MarkenG). This excludes, for example, the technically unavoidable noise of a printer.

Presentation of your sound as an mp3 file OR graphically

In order to ensure that the application is formally correct, either a graphic representation in standard musical notation on paper/JPEG file can be attached, § 11 (1), (2) MarkenV. Standard musical notation refers to a structured stave, i.e., with clef, note and rest symbols, and any necessary accidentals. Or, instead of the graphic method, a more contemporary approach: representation on a data carrier as an mp3 file. In this case, the graphic representation is no longer necessary. This is particularly practical for sounds that cannot necessarily be represented graphically.

Alternative (!) to the mp3 file: The graphic representation of your sound mark

If you still prefer the graphic representation, there are a few formalities to observe (Section 11 (3), Section 8 (2)-(6) MarkenV): Overlays or crossings-out that may be obstructive, as well as non-permanent color representations, are not permitted (Section 8 (2) MarkenV). The German Patent and Trademark Office has a form for the representation of the trademark, which must be enclosed with the application and on which the representation of the trademark must be printed or affixed. There are precise dimensions that must be adhered to for the representation: no smaller than 8 cm in width or 8 cm in height. Nothing else may be included in the field except, if necessary, the note “top” to indicate the correct position (Section 8 (3), (5) MarkenV). If you do not wish to use this form, you must use A4 paper, in which case the area used for the representation must not be larger than 26.2 cm x 17 cm and also not smaller than 8 cm in width or 8 cm in height. This sheet must be printed on one side only, and a margin of at least 2.5 cm must be left at the top and left-hand edge of each sheet (Section 8 (4) MarkenV).

Sound marks are the only type of trademark that are not perceived visually, which gives them a unique selling point and can greatly boost the marketing of your goods or services. We would be happy to advise and assist you with the registration process.

Franziska Becker

Jüdemann Rechtsanwälte

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Warnings and Legal Actions – The confectionery distributor Wilmers, which is also conducting the proceedings before the Higher Regional Court (OLG) Cologne, is currently issuing cease-and-desist letters to retailers.

In its July 2025 decision (Case No. 6 U 65/25), the OLG Cologne prohibited a German food retailer from distributing or advertising a chocolate product under the label “Dubai Chocolate” in Germany if the product was not actually manufactured in Dubai or otherwise had no genuine geographic connection to the Emirate. The court made it clear that the term “Dubai Chocolate” constitutes a geographic indication of origin – not merely a fantasy name or reference to a particular recipe. This ruling has significant implications for the food and advertising industries and provides clear guidance on how to handle geographic origin claims in a globalized marketplace.

Background: The Dispute Over Origin

The claimant is a distributor specializing in the import of exclusive confectionery, including the product known as “B. Dubai Chocolate,” which is produced in Dubai by a licensed manufacturer. Distribution is managed via a service company based in Dubai, exclusively for the European market. The product gained widespread popularity—driven largely by TikTok trends and social media—commanding high prices both online and in brick-and-mortar retail.

By contrast, the defendant had a similar chocolate product manufactured in Turkey and marketed it under the name “Dubai Chocolate.” The packaging featured the iconic silhouettes of the Burj Khalifa and Burj Al Arab, along with English-language descriptions. The claimant saw this as misleading to consumers and filed for a preliminary injunction—initially granted by the Cologne Regional Court. However, the lower court later overturned the injunction, finding no risk of consumer deception. The claimant appealed—successfully.

OLG Cologne: Origin Is More Than a Recipe

The Higher Regional Court of Cologne overruled the lower court and held that “Dubai Chocolate” is a protected geographic indication under §§ 126 ff. of the German Trademark Act (MarkenG). According to the court, consumers would interpret “Dubai” not as a reference to ingredients (like pistachio cream and kadaifi pastry), but as a geographic origin. This interpretation is reinforced by the fact that the recipe was originally developed in Dubai and the media hype is explicitly linked to the city.

The court rejected the lower court’s assumption that “Dubai Chocolate” had become a generic term. A term ceases to be a protected geographic indicator only if the majority of the public no longer understands it as such. That was not the case here. The average consumer, said the court, expects a product labeled “Dubai Chocolate” to either come from Dubai or have undergone key production steps there.

The term “Dubai Handmade Chocolate” was always understood as a direct indication of origin. Consumers do not perceive it as a fantasy name or merely a recipe description.

Even a cursory reading of the name suggests that the public understands “Dubai” as referring to the Emirate or its capital city. Such labels are to be considered origin claims unless it is clearly shown that the term is used in a non-geographic or fanciful sense.

In this case, the origin of the recipe in Dubai—developed by Sarah Hamouda, founder of Fix Dessert Chocolatier—along with viral TikTok videos by influencers Maria Vehera and German food blogger Kiki Aweimer, strongly pointed to a geographic origin. These influencers tasted the chocolate in Dubai and shared their enthusiasm with millions of followers.

The initially high prices and limited availability in Germany also reinforced the consumer perception that this was a product of origin. Consumers were willing to pay premium prices and wait in long lines because they associated the chocolate with the exclusivity of Dubai (Jehle, GRUR 2025, p. 215, 220). Some even resold it at marked-up prices on online platforms.

Importantly, this desire wasn’t only due to the luxurious pistachio-based recipe, but also to the perception that the product originated from Dubai—a city associated with premium quality and luxury experiences.

Packaging and Marketing Reinforce Origin Misconception

The court also pointed to the packaging design as a factor contributing to consumer deception. It featured iconic Dubai landmarks such as the Burj Khalifa and Burj Al Arab, occupying a significant portion of the front design. Under EU law (Regulation 1151/2012), referencing a place of origin on packaging argues against a term being classified as generic (see Feta II, GRANA BIRAGHI cases). Thus, even if the image alone weren’t enough, the presence of the word “Dubai” on the package firmly linked the product to the Emirate in consumers’ minds.

Furthermore, the use of English-language packaging indicated an imported product. Consumers, especially in this context, would interpret it as originating from the place referenced—Dubai.

Misleading by Design – § 127 MarkenG

The court concluded that the packaging and presentation created a misleading impression of geographic origin under § 127(1) MarkenG. The use of Dubai’s skyline, English text, and a luxurious aesthetic all reinforced the impression that the product was imported from Dubai. Consumers, particularly with high-end products like this, are especially sensitive to implied origin claims, which suggest exclusivity and authenticity.

The defendant’s argument—that consumers understand that products are globally produced and ingredients don’t always originate from the named location—did not persuade the court. Even if pistachios aren’t grown in Dubai, consumers expect that the final product is at least manufactured or assembled there.

Unfair Competition – § 5 UWG

In addition to trademark law, the court found a violation of § 5 of the German Unfair Competition Act (UWG). Even if one were to interpret “Dubai Chocolate” as a mere description of the recipe, the packaging and advertising created a misleading impression of origin that could influence consumer purchasing decisions—making it unfair commercial practice.

No Security Required – Strict Standards for Importers

The defendant’s request to require a security deposit as a condition for enforcing the preliminary injunction was denied. The court found no risk of unusually high damages and no concrete harm to the defendant. By contrast, the claimant lacked the means to provide such security. Therefore, the court prioritized effective legal protection.

Significance of the Ruling

The OLG Cologne’s decision sends a clear message: Geographic origin designations remain legally protected—even in a globalized economy. Companies hoping to benefit from the image of a specific place must ensure that their products genuinely originate there, particularly when using premium pricing and exclusive marketing tactics.

The ruling also makes clear that viral popularity and extensive media coverage do not automatically turn a protected designation into a generic term. Such transformations are rare and must meet stringent requirements.

For the advertising and food industries, the takeaway is clear: Use of geographic names requires caution—especially when tied to well-known cities or regions. If the label says Dubai, it must actually be from Dubai.

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In addition to personal blogs hosted on their own websites, influencers can also promote products simply by presenting images (so-called “posts”), short videos (“stories”), as well as newer formats like “reels” or “live videos” on social media. They may use “tags” or “tap tags,” as well as explicit links that, when clicked, lead directly to the advertised products.

Whether influencer marketing constitutes a violation of competition law under Section 5a (4) of the German Unfair Competition Act (UWG) depends on the specific case. Because case law regarding labeling obligations in influencer marketing has varied widely, the legislator has attempted to provide clarity with the revised Section 5a (4) sentences 2 and 3 UWG.

When assessing whether an action benefits a third-party company, it is now crucial that the influencer has received payment or a similar benefit, with the burden of proof resting on the influencer. Section 5a (4) sentence 2 UWG does not apply to actions benefiting one’s own company. This is because self-promotion is also generally subject to a labeling obligation if it is not otherwise recognizable. For unpaid recommendations by influencers, as per the addition in Section 2 (1) No. 2 UWG, it must be considered whether there is a direct connection to the sale of products or services. Influencers in this area are to be regarded similarly to media companies, as they regularly finance themselves through advertising revenue and are particularly attractive to clients when they have a large reach.

Furthermore, for actions benefiting one’s own company, there must be no doubt among the relevant target audience that a commercial purpose is present. The requirement to label only lapses if the advertising nature is immediately and unmistakably apparent. A commercial purpose is not absent just because a profile is labeled “private” and not a “business account,” as long as it is publicly accessible. For “business accounts” on Instagram, which are marked with a blue checkmark, case law correctly assumes that the relevant audience is aware these are operated mainly for monetary reasons and thus pursue commercial purposes. The same applies to accounts with millions of followers and posts of high quality with more than 50,000 likes. The situation may be different if the advertising effect only becomes apparent after a detailed analysis of the post, for example, if decisive company tags for the commercial purpose only become visible when hovering over the posted image.

The requirements for labeling (the “how”) depend on the circumstances of each case, especially the communication medium used. Key factors include the placement of the label within the post, the design and visual emphasis, as well as the specific wording. The use of hashtags like “#ad” or “#sponsored by” is not sufficient if they are placed at the end of a post. In all cases, the freedom of expression and media freedom under Article 11 of the Charter of Fundamental Rights of the European Union must be considered.

Influencer marketing can also be relevant under media law. If influencers, through specific presentations, draw attention to products or services, this may constitute advertising if the presentation of goods or services is prominent; it may be considered sponsorship if, for example, a video is fully or partially financed by a company, and product placement if brands or products are specifically shown or mentioned.

It is also important to consider No. 11 of the Annex to Section 3 (3) UWG. The key question here is whether the influencer’s posts can be classified as “editorial content.” For blog posts, this can generally be affirmed, though it depends on the individual case. For Instagram posts or similar media, this is more critically assessed.

Additionally, claims may arise under Section 3a UWG in conjunction with Section 10 LPG, Section 3a UWG in conjunction with Section 22 MStV, and Section 3a UWG in conjunction with Section 6 (1) No. 1 TMG if the influencer receives financial compensation. In such cases, these provisions are considered special regulations and take precedence when actions benefit a third-party company.

For impermissible advertising in editorial form, the distributor can initially be held liable for injunction and removal under Section 8 (1) UWG. In print media, the publisher and responsible editor or editor-in-chief, as well as the printer, are liable and cannot invoke the press privilege recognized in competition law for publishing advertisements. The independent advertising agent, who forwards a pre-prepared contribution from the advertiser, can also be held liable, but only for their involvement in editorial advertising, not for its publication. In broadcasting, not only the broadcaster is liable as an interferer; the production company, if separable from the broadcaster, is also liable. Additionally, all other independently involved parties in the program or film, such as the director, moderator, or main actor, can be held liable. In influencer marketing, liability may extend not only to the influencer but also to other involved parties or companies, such as consumer goods manufacturers, retailers, or agencies increasingly used by influencers.

Practical Tip:
To avoid liability in influencer marketing, it is advisable to agree on indemnification clauses internally.

The traditional liability rules apply to the distributor without restriction. To avoid unlimited liability for those not directly acting, case law has restricted the concept of “interferer liability” and requires a breach of a duty to review. In competition law, “interferer liability” has now been abandoned, and direct liability is now linked to the breach of duties of care or review. Liability for adopting third-party content arises from general rules but can be problematic with new technical possibilities like hyperlinks and framing.

For the relatively rare claims for damages and preparatory information, the press privilege under Section 9 sentence 2 UWG must be observed, which stipulates that a claim for damages against those responsible for periodical print media can only be asserted in cases of intentional violation. Section 10 UWG also regulates a claim for disgorgement of profits for associations under certain conditions.

b) Beneficiary

The liability of the beneficiary of impermissible disguised advertising is somewhat more nuanced. The beneficiary is fully liable under general principles if they have deliberately caused the disguised editorial advertising, especially through agreements with the distributor. However, this can often be difficult to prove. In such cases, the beneficiary is only liable if, based on life experience, it is clear that the beneficiary submitted their advertising material in such a way that they deliberately speculated on disguised editorial advertising. This is the case, for example, if the beneficiary submits advertisements in editorial form; they cannot later claim ignorance of insufficient labeling. The same applies if a beneficiary sends ready-to-print articles with disguised advertising to newspapers to which they have also placed insertion orders, as this may compromise editorial independence.

The beneficiary’s responsibility may also arise if they provide building blocks for the editorial text that, upon reasonable assessment, can only be incorporated into editorial advertising (sometimes even the provision of product images suffices), and they may need to reserve the right to review the final article. Disguised advertising can appear not only in editorial press reports but also in statements by seemingly neutral third parties that are, in fact, paid advertisements and are thus objectionable under competition law.

In recent years, influencer marketing has emerged as a successful business model alongside traditional marketing methods. Its peculiarity lies in the fact that, rather than traditional sales intermediaries, influencers—often female personalities (“role models”)—operate accounts on social media platforms, mainly Instagram but also YouTube, Facebook, and Snapchat, for self-presentation and have gathered a large number of followers. They use their popularity to present certain products or companies (such as clothing, handbags, cosmetics, food, hotels) to their followers in a seemingly private and casual manner through posts, tagging, and linking, thereby encouraging purchases. When products are clicked in image posts (“tap tags”), the company’s identifiers (electronic tags) appear. Clicking these “tap tags” leads via links to the companies’ accounts, which directly or indirectly enable the purchase of the displayed goods or services. Influencers typically receive, demand, or expect payment or other material benefits for these activities.

The numerous legal questions regarding the permissibility of influencer marketing have led not only to extensive academic discussion but also to various court decisions. These issues have largely been clarified by three leading decisions and two further decisions of the Federal Court of Justice (BGH). However, the BGH could no longer take into account the new regulations in Section 2 (1) No. 2 (insertion of the word “directly”) and in Section 5a (4) sentences 2 and 3, introduced by the Act to Strengthen Consumer Protection in Competition and Trade Law as of May 28, 2022. These new regulations were intended to provide a secure legal framework for influencer actions. Legal consulting practice has adjusted to the largely clarified legal situation. The relationships between advertising companies and influencers are increasingly governed by detailed contracts, which also stipulate the influencer’s obligation to appropriately label the commercial purpose of their posts. As a result, it is expected that there will be hardly any major legal disputes over influencer marketing in the future.

For the legal assessment of influencer activities, it is important to distinguish between actions for one’s own company and those for a third-party (advertising) company, as different requirements apply. The same action by an influencer must therefore usually be examined from both perspectives. It should be noted, however, that under Section 5a (4) sentence 2, in the case of actions for a third-party company, a commercial purpose does not exist if the actor does not receive or is not promised any payment or similar benefit from the third-party company.

If you need a more concise summary or a reformulation for a specific purpose (e.g., academic, business), please let me know!

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1. Introduction: The Legal Grey Area of Reaction Videos

Reaction videos have become a staple of digital media culture. They shape public opinion, provide entertainment, and enable interactive engagement with content. From humorous commentary to in-depth analysis or political statements, the spectrum is vast. However, the apparent ease with which third-party content is integrated into these videos belies a complex legal landscape—especially concerning copyright and trademark law.

The judgment of August 29, 2024, is a landmark decision that clarifies and tightens the requirements for creators of reaction videos, particularly regarding the obligation to credit authors and the application of copyright exceptions. It demonstrates that the assumption that reaction videos automatically fall under a copyright exception is often a misconception. This article explores the core aspects of the judgment, expands on trademark implications, and outlines the comprehensive consequences creators may face if they fail to comply with legal requirements.

1. The Judgment of August 29, 2024: Detailed Copyright Analysis

The court’s order of August 29, 2024, concerning a preliminary injunction, provides valuable insights into current case law on reaction videos. The applicant, seeking to prevent the removal of three specific videos from the platform “E.” and to avoid copyright warnings, was denied relief. The court’s reasoning is crucial.

The court found that the applicant’s public accessibility of “third-party moving images” constituted a copyright infringement. These moving images are protected at least under § 95 of the German Copyright Act (UrhG) (protection of moving images as photographic works or similar representations) or as film works (§ 2(1)(6) UrhG). The use occurred without the rights holder’s consent. The applicant could not successfully invoke any statutory copyright exceptions.

1. The Decisive Role of Author Attribution (§ 63(2) UrhG) in the Context of the Quotation Right (§ 51 UrhG)

The core of the court’s reasoning is the denial of the quotation right under § 51 UrhG, the most important exception for using third-party works in reaction videos.

1. a) The General Rule of Complete Author Attribution
   51 UrhG allows the reproduction, distribution, and public communication of a published work for the purpose of quotation, provided the use is justified by the specific purpose. The court acknowledged that the requirements of this provision could, in principle, be met, as the applicant engaged with the content of the moving image excerpts and commented on them as part of their own expression of opinion. However, the decisive hurdle was the failure to comply with the “formal requirements” of § 63(2) UrhG. According to this provision, in cases of public communication, the source—including the author’s name—must always be indicated unless this is impossible.

The applicant had indicated the source of the used videos but did not name the author, which was necessary. The absence of author attribution was not justified. The entire quotation was thus unlawful.

1. b) Narrow Interpretation of “Impossibility” of Author Attribution
   The court emphasized that author attribution is the rule and its omission the exception. Such an exception only applies if attribution is “impossible,” and the burden of proof lies with the user. The user must specifically demonstrate what efforts were made to identify the author.
2. c) Extensive Duty to Research
   The court stressed the duty to actively research the author. It is insufficient that the author was not listed on the platform. The applicant should have, for example, contacted the channel operator via the provided email address to inquire about authorship. The applicant’s fear of political backlash was deemed understandable but not sufficient to render attribution impossible.
3. d) The Painer/Standard Exception
   The court distinguished this case from the ECJ’s “Painer/Standard” decision, where omission of author attribution was allowed because the secondary source was not permitted to name the author. Here, the applicant used the original source, so research was feasible.
4. e) Consequence
   Violation of the attribution requirement renders the use of the work entirely unlawful.
5. Pastiche (§ 51a UrhG): Between Legislative Intent and Restrictive Case Law

Another central point is the rejection of the pastiche exception (§ 51a UrhG), introduced with the implementation of the DSM Directive.

1. a) Broad Legislative Intent vs. Judicial Interpretation
   The German legislator intended a broad concept of pastiche to cover practices like remix, meme, GIF, mash-up, fan art, fan fiction, or sampling as key elements of contemporary digital culture. The court, however, followed the restrictive approach of the German Federal Court of Justice (BGH), which sees pastiche as at least a catch-all for artistic engagement with a pre-existing work, possibly requiring humor, stylistic imitation, or homage.
2. b) Application to Reaction Videos
   The court found no artistic engagement in the applicant’s videos, only political commentary. Even if some humor was present, it was merely a stylistic device for commentary, not a protected artistic contribution.
3. c) Avoiding Redundancy with the Quotation Right
   The court argued that accepting pastiche in such cases would render the quotation right and its limitations obsolete, which was not the intent of the EU legislator.
4. Other Exceptions: Inapplicability to Pure Commentary

The court also considered other exceptions, such as reporting on current events (§ 50 UrhG) or caricature and parody (§ 51a UrhG), and found them inapplicable. The applicant did not caricature or parody the content but merely commented on it.

Key Takeaway:
Pure commentary or political engagement with third-party video material without full author attribution is unlawful and does not fall under broad copyright exceptions, especially not pastiche.

III. Trademark Law Challenges for Reaction Videos: A Deeper Look

In addition to copyright, reaction videos also pose significant trademark risks. Often, the content being reacted to features trademarks, logos, slogans, or even product placements.

1. Trademark Law Functionality and the Risk of Confusion

Trademarks serve to distinguish the goods or services of one company from another (§ 3 German Trademark Act, MarkenG). Trademark infringement occurs if a protected sign is used “in the course of trade” without the owner’s consent (§ 14(2) MarkenG). For professional creators earning revenue, this is typically the case.

Risks include:

• Identical or Similar Use for Similar Goods/Services: If viewers might believe the creator is affiliated with the trademark owner.
• Risk of Confusion: If the impression arises that the reaction video is from or authorized by the trademark owner.
• Exploitation or Detriment to Distinctiveness or Reputation: Especially relevant for well-known marks (§ 14(2)(3) MarkenG).

2. Limits of “Nominative Use” and Critical Reporting

Generally, the mere mention or depiction of a trademark for descriptive or critical purposes is permissible, provided it does not imply a business relationship with the trademark owner. However, the boundaries are fluid:

• Advertising Impression: Using a trademark in a way that objectively appears as advertising for the creator’s or third-party products crosses the line.
• Avoiding Defamation or Denigration: Criticism is allowed, but not unfounded negative statements that could constitute actionable disparagement.
• Risk of Confusion or Unfair Exploitation: If the use creates the impression of partnership or unfairly leverages the brand’s reputation, infringement may occur.

3. Practical Examples

• Prominent Product Placement: Reacting to an ad and repeatedly showing a product without critical engagement may be impermissible, especially if the creator also advertises products.
• Uncommented Logo Displays: Inserting logos as background or overlays without direct commentary may suggest exploitation of the brand’s reputation.
• Use of Slogans in Titles/Descriptions: Employing well-known slogans without direct critique may constitute unfair exploitation.

Trademark law assessments are highly fact-specific and require careful balancing of freedom of expression and trademark protection.

1. Comprehensive Consequences for Creators and Preventive Strategies

Non-compliance with copyright and trademark law can have far-reaching, even existential, consequences for creators, extending well beyond mere video deletion.

1. Civil Sanctions: Cost Risks and Damages

The most common first step by rights holders is a cease-and-desist letter. The creator is required to remove the content, sign a cease-and-desist declaration (often with a penalty clause), and pay the rights holder’s legal fees.

If the creator refuses:

• Preliminary Injunctions: As in this case, rights holders can obtain a quick court order.
• Main Proceedings: If necessary, a full trial may follow.

Damages:
Rights holders can claim damages, calculated by:

• License analogy: What a reasonable licensee would have paid.
• Actual damages: If provable.
• Surrender of profits: The creator must disclose and surrender profits from the infringement.

All legal costs can quickly escalate, especially with high-reach videos.

2. Criminal Implications

Copyright (§ 106 UrhG) and trademark (§ 143 MarkenG) infringements can also be criminal offenses, especially if intentional and commercial. Fines and even imprisonment are possible, though rare.

3. Platform Enforcement: Content ID and Strikes

Platforms like YouTube, Twitch, and TikTok use automated systems (e.g., Content ID) to detect infringements. Rights holders can block, monetize, or issue strikes. Three strikes within a set period (e.g., 90 days on YouTube) can lead to permanent channel deletion.

4. Reputational and Sponsorship Risks

Legal disputes or public cease-and-desist letters can severely damage a creator’s reputation, affecting both audience and potential sponsors.

5. Recommendations for Creators

• Strictly comply with attribution requirements: Always name the author and source; actively research if not immediately apparent.
• Assess the purpose of trademark use: Only use brands in a descriptive or critical context, not for advertising or reputation exploitation.
• Focus on original creativity and transformation: The more original input, the more likely an exception may apply.
• Use licensed or license-free material: Prefer Creative Commons or explicitly licensed content.
• Seek legal advice when in doubt: Especially for high-value or controversial content.
• Be cautious with political commentary: Pure political commentary on third-party content without artistic engagement is not protected by copyright exceptions.

1. Conclusion: The Evolution from “Digital Wild West” to a Regulated Space

The August 29, 2024, judgment sends a clear message to the creator community: The era of lax copyright practices online is ending. Reaction videos remain a vital format, but their creation now requires legal diligence and responsibility.

Active research, strict attribution, and a clear understanding of the limits of copyright and trademark exceptions are essential. Creators who embrace these challenges and take preventive measures can continue to thrive. Those who ignore the risks face severe civil, criminal, and platform-related consequences that could jeopardize their entire online presence.

The post Reaction Videos Rigths and Obligations – District Court Cologne 06.09.2024 – 14 O 291/24 appeared first on Jüdemann Rechtsanwälte.

Key Legal Issues
The core legal questions were whether the storage and evaluation of GPS tracking data in the employment context is permissible and whether employee consent can serve as a legal basis for such processing. Another issue was whether financial incentives, such as a salary increase, could influence the voluntariness of consent.

Court’s Reasoning
The court dismissed the company’s claim and upheld the orders of the data protection authority. It found that the long-term storage of GPS data for purposes such as efficiency improvement, theft prevention, and evidence preservation was not necessary and thus disproportionate under the GDPR. The court argued that storage of data was not the least intrusive means to achieve these purposes, as live tracking would suffice for short-term coordination and route optimization. For theft prevention, access to the live location in specific cases was deemed sufficient.

Storing location data for evidence preservation was also not justified, as it was not suitable for proving service delivery. The court emphasized that general, preventive monitoring without specific suspicion is impermissible. Storage of personal data for control or evidence purposes requires a concrete, documented initial suspicion.

On Consent in Employment Relationships
The court examined in detail whether employee consent could justify the data processing. According to Section 26(2) of the German Federal Data Protection Act (BDSG) and Article 6(1)(a) GDPR, consent is only valid if it is given voluntarily. The court referred to established case law of the Federal Labour Court, which holds that due to the hierarchical relationship in employment, true voluntariness of consent can rarely be assumed.

Financial Incentives and Voluntariness
However, the court explicitly left open whether a financial incentive—such as a salary increase—might, in an individual case, be sufficient to render consent voluntary. The court noted that it did not need to decide whether a financial benefit such as a salary increase could make consent voluntary, and thus effective. This leaves open the possibility that, under certain circumstances—such as a significant financial benefit—the voluntariness of consent could be assumed despite the inherent dependency in the employment relationship. The court, however, cautioned that even in such cases, the strict requirements for voluntariness and transparency of consent must be observed, and a case-by-case assessment would be necessary.

Guiding Principles (Leitsätze)

Long-term storage of GPS tracking data for monitoring employees in the logistics sector is disproportionate and violates the GDPR unless there is a specific reason.
Live tracking of vehicles may be permissible if it is limited to what is strictly necessary and no long-term storage occurs.
Employee consent to the storage and evaluation of GPS data is generally not a valid legal basis in the employment context, as it is usually not given voluntarily.
The court leaves open whether a significant financial incentive, such as a salary increase, could in individual cases render consent voluntary and thus effective.
Companies must fully inform employees about GPS tracking in accordance with Article 13 GDPR.
Storage of personal data for control or evidence purposes requires a concrete, documented initial suspicion.
Detailed Reasoning and Assessment
The VG Wiesbaden’s judgment is a significant addition to case law on employee data protection. It underlines that the requirements for the lawfulness of monitoring measures in employment are strict. Courts demand a rigorous assessment of necessity and proportionality for each individual measure. The storage of GPS data over a long period is only permissible in exceptional cases, such as when there is a specific suspicion of misconduct and storage is necessary for evidence preservation.

The court’s discussion of consent is particularly relevant. While consent under the GDPR is generally a valid legal basis for processing personal data, there are serious doubts about its voluntariness in employment due to the structural imbalance between employer and employee. The court follows the restrictive approach of case law and supervisory authorities, according to which consent in employment is only genuinely voluntary in rare exceptional cases.

By explicitly leaving open whether a financial benefit such as a salary increase could make consent voluntary, the court points to the need for a case-by-case assessment. It acknowledges that voluntariness is not categorically excluded if the employee receives a substantial benefit. However, it remains unclear how significant the financial incentive would need to be and how the balancing of interests would be conducted in practice. Companies wishing to rely on such consent must therefore carefully document that consent was truly voluntary and given without pressure or coercion. They must also ensure that employees have an unrestricted right to withdraw consent at any time and that there are no negative consequences for refusal or withdrawal.

Practical Implications for Companies
For companies, the judgment means that they should be extremely cautious when using GPS tracking systems. Storing location data beyond the moment of live tracking is generally impermissible. Obtaining consent is only a viable legal basis in the employment context in rare exceptional cases. Companies should therefore primarily rely on other legal bases, such as Section 26(1) BDSG (necessity for the employment relationship) or Article 6(1)(f) GDPR (legitimate interest), always subject to a strict proportionality assessment.

Conclusion
The VG Wiesbaden has set a high bar for the data protection-compliant use of GPS tracking in the employment context. The storage of location data is only permissible in narrowly defined exceptional cases. Employee consent is generally not a valid legal basis, although the court leaves open whether a significant financial benefit, such as a salary increase, could make consent voluntary in individual cases. Companies are therefore well advised to proceed with great care when introducing and using GPS tracking systems and to seek legal advice if in doubt.

Note:
Jüdemann Rechtsanwälte advise companies comprehensively on all data protection matters, particularly on the data protection-compliant design of GPS tracking and other monitoring measures in the employment context.

The post Data Protection: GPS Tracking VG Wiesbaden, Judgment of 17 January 2022 – 6 K 1164/21.WI appeared first on Jüdemann Rechtsanwälte.

Guiding principles of the author

1. in the context of the required balancing of the interference with the personal rights of the
of the person concerned and the public’s interest in information, current reporting and thus the
reporting and thus the information interest deserves priority in any case if the journalistic
priority if the journalistic due diligence requirements are met.

2. an allegation of fact is to be assumed if the content of the statement
content of the statement is accessible to objective clarification according to the understanding of the average

and, as something that has happened, is in principle open to proof. In contrast
is an expression of opinion if the statement is characterized by the elements of an
statement is characterized by the elements of opinion, support or opinion.

3. the application of an appeal provision may be omitted in individual cases if
it is not compatible with the special features and character of the summary proceedings. Insofar as
the view is taken that the provision should not be applied in interim legal protection
not be applied because the urgency of the proceedings means that it is more likely
than in normal legal proceedings that facts are not presented immediately,
be it that in the time available the information is not provided at all or not
the information could not be obtained at all or not with the material necessary for substantiation, or
the relevance of the fact was not recognized due to time pressure, this can be taken into account by
be taken into account by the fact that the element of negligence within the meaning of sec.
within the meaning of section 531 (2) no. 3 ZPO is to be interpreted more narrowly than in the main proceedings.
proceedings.

2. The role of the press in reporting on pending criminal cases and trials is a complex one, fraught with legal, ethical, and societal implications. Journalists serve as a crucial conduit between the judicial system and the public, ensuring transparency and accountability. However, they must balance this responsibility with the potential for prejudicing proceedings and infringing on defendants’ rights. This tightrope walk necessitates a nuanced approach to journalism that respects the principles of justice while fulfilling the press’s role as a watchdog.

The Role of the Press

At its core, the press plays an indispensable role in the criminal justice system. By reporting on pending cases and trials, journalists:

1. Inform the Public: Providing the public with information about legal proceedings helps citizens understand how the justice system works and ensures transparency.
2. Promote Accountability: Press coverage can bring attention to misconduct or corruption within the judicial system, prompting necessary reforms.
3. Foster Public Discourse: Engaging the public in discussions about high-profile cases can lead to broader conversations about law, order, and social justice.

Legal and Ethical Constraints

Despite these benefits, there are significant legal and ethical constraints that journalists must navigate when reporting on pending criminal cases.

1. Presumption of Innocence: Central to the criminal justice system is the principle that an individual is presumed innocent until proven guilty. Media coverage that appears to assume guilt can prejudice the public and potential jurors, undermining this fundamental right.
2. Fair Trial Rights: Extensive pre-trial publicity can influence the opinions of jurors, jeopardizing the defendant’s right to an impartial jury. Courts often issue gag orders or limit media access to mitigate this risk.
3. Contempt of Court: In some jurisdictions, publishing certain details about ongoing cases can be considered contempt of court, potentially leading to legal repercussions for the journalist and the media outlet.

Striking a Balance

To navigate these challenges, journalists should adhere to best practices that balance the public’s right to know with the rights of the accused.

1. Accuracy and Objectivity: Reporting should be factual, devoid of speculation, and free from bias. Journalists must strive to present a balanced view, giving equal weight to the defense and prosecution’s perspectives.
2. Respect for Privacy: Sensitive information, such as the identities of victims or witnesses, should be handled with care to protect their privacy and safety.
3. Avoiding Prejudicial Language: Language that implies guilt or sensationalizes the case should be avoided. Neutral terminology helps maintain objectivity and fairness.
4. Compliance with Legal Restrictions: Journalists must be aware of and comply with legal restrictions, such as reporting bans or gag orders, to avoid interfering with the judicial process.

The Impact of Digital Media

The advent of digital media has amplified the challenges associated with reporting on pending criminal cases. The 24-hour news cycle, social media platforms, and citizen journalism have intensified the dissemination of information, often bypassing traditional editorial controls. This can lead to the rapid spread of misinformation and unverified details, further complicating the balance between public interest and fair trial rights.

To mitigate these issues, media organizations should invest in training journalists on legal and ethical standards, promote responsible journalism practices, and engage in self-regulation to uphold the integrity of their reporting.

Conclusion

Press reporting on pending criminal cases is a critical yet delicate task. Journalists must navigate a landscape of legal and ethical constraints to ensure that their coverage does not compromise the fairness of judicial proceedings. By adhering to principles of accuracy, objectivity, and respect for legal boundaries, the press can fulfill its role in promoting transparency and accountability while safeguarding the rights of the accused. In an era of rapid information dissemination, maintaining this balance is more challenging and essential than ever.

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If you’re a producer, you know you’re an important part of the success of the artist whose tracks you’ve overseen. That’s why you’ll want to know how you’ll share in the royalties that the tracks bring in. This besides the points you get when you are co-writer.

Artistic producer

The artistic producer (producer), who carries out a sound or visual production with artists on behalf of a label or economic producer, is the owner of ancillary copyrights and is therefore entitled to an appropriate remuneration for his services. On the one hand, he receives this remuneration for his “work” on the production. For this, the contractual partners usually agree on a fixed amount (fixed remuneration).

Furthermore, the artistic producer usually receives a share of the proceeds from the exploitation of the recordings for the transfer of the exploitation rights to the tracks. The usual percentage is between three and six percent, depending on the producer’s negotiating position. One should not conclude a contract for less than three percent, as the remuneration would then no longer be appropriate in my opinion.

Often, with regard to the revenue share, offsettable advances are paid. Mixed forms are conceivable, e.g. revenue shares that are only paid after the production costs have been recovered.

Shares of other revenues are also conceivable. For example, some producers demand percentage shares of net revenues from all non-royalty income received by the client from the exploitation of the master, including payments from the exploitation of recordings in films (master rights). Whether this is appropriate depends on the individual case.

Agreements on producer royalties should always be made in writing – in these contracts, which we will be happy to draw up for you, regulations should also be made as to whether the producer is also a co-writer, i.e. has become a co-author.

Kai Jüdemann (Specialist lawyer for copyright and media law)

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