Tuesday, 20 May 2014

Right To Forget and Search Engine (ECJ Google Spain Decision)

European Court of Justice C-131/12

In a ruling which is already being commented as a landmark decision the European Court of Justice held that the search engine provider Google Spain has to delete certain links from its search result index if those links lead to information provided by third parties that is personal data the processing of which by the search engine at this point in time is not any more covered by the legal requirements of processing such personal data. Google search index still provided a link to newspaper reports from 16 years ago about the auctioning of property of an individual who was in debt. The debt was paid off.

According to data protection law the data controller, here the search engine provider, has to ensure that personal data are processed fairly and lawfully, collected for specified, explicit and legitimate purposes, not further processed in a way incompatible with those purposes, adequate, relevant and not excessive in relation to the purpose for which they are collected or processed, accurate, kept up to date, kept in form which permits the identification of data subjects for no longer than is necessary for the purposes for which the data were collected or processed. The controller must take every reasonable step to ensure that data which do not meet those requirements are erased or rectified.

The decision supports the individual's so called "right to forget" in the digital world. It also holds non EU companies, particularly US companies, liable under EU data protection law if they do business directly or through their entities in Europe.

Consumer Rights Directive Effective 13/06/14

The EU consumer rights directive EC 2011/83 dated 20.10.2011 becomes directly applicable national law from the 13th of June onwards. EU countries that implemented the directive by local acts must apply those laws by that date.In the UK the "Consumer Contracts Regulations 2013" comes into force. In Germany the "Gesetz zur Umsetzung der Verbraucherrechterichtlinie" dated 27/09/13 transposes the EU directive into German law.
The directive addresses business conducted between a trader and a consumer (b2c).

Most importantly the directive aims to eliminate hidden charges and costs on the internet, increase price transparency, ban pre-ticked boxes on websites, grant consumer 14 days to change his mind on a purchase, give better refund rights, introduce an EU wide model withdrawal form, eliminate surcharges for the use of credit cards and hotlines, provide clearer information on who pays for returning goods, provide better consumer protections in relation to digital products, set common rules for businesses to make it easier for them to trade all over Europe.

Tuesday, 6 May 2014

Jurisdiction and Transnational Copyright Infringement

ECJ  C-387/12

The European Court of Justice looked again at the issue of transnational copyright infringement. In the case of a photographer suing a French company for transferring the economic rights to a photo he took to another company in France which had a German entity. 
The Court found that apart from the general jurisdiction of the place of harmful event, jurisdiction could also be established at the place where the damage occurred. Although that jurisdiction would be limited to determining the damage incurred in that country. Therefore the photographer could sue the French company for the damages he incurred by the German entity of the second French company exploiting his photographic work in Germany.

Screen Scraping and Restriction of Competition

BGH I ZR 224/12

The German Federal Court tried a case in which one travel website's software would take concrete flight and pricing information from the websites of various airlines and offer those flights for purchase including an additional service fee to the internet user on the travel website. This practice is also called Screen Scraping. One airline claimed that such practice would violate its competition rights because it wanted to sell only directly to travellers and therefore had inserted in its website terms and conditions the prohibition of Screen Scraping.

The Court held that the screen scraping in this case did not circumvent technical measures put in place by the airline's website but merely violated its website terms and conditions which it did not find sufficient to constitute a violation of competition law. The intention and practice of the travel website to provide to travellers an overview of the available flights and prices of various airlines would also support competition and not restrict it. The airlines interest of selling only directly to travellers would not prevail over the travel websites interest under competition law.