Dear Dr. Lindloff,
the law firm "Caspers Mock & Partner mbB", for which you work, was awarded the prize "Law Firm of the Year 2010 – South West Region" at the end of 2010, on which we would like to congratulate youWe would like to congratulate them on this. As a specialist lawyer for intellectual property and IT law, they represent the interests of clients when it comes to internet law, among other things.
We are constantly encountering new legal issues in the design of our clients' websites that were not an issue in previous years. What are the difficulties in your area of law and why do new issues keep coming up?
Dr. Dirk Lindloff:
The legal situation and especially the case law relating to the internet is not yet as well established as one would expect in other legal fields, such as labor law, due to the relatively young age of the medium. As a result, new aspects of Internet law are emerging almost every month. In addition, the rapid growth of possibilities on the Internet creates a high level of dynamism, since new technologies are only taken into account by existing laws and current case law when a certain threshold of demand has been exceeded.
Modix:
In the meantime, some basic rules are already known when it comes to the topic of "commercial internet presence". Can you tell our customers these most important, general ground rules that should be observed in principle in order to be able to operate legally securely on the internet and thus use this medium with the greatest possible economic success and the lowest possible legal risk?
Dr. Dirk Lindloff:
It is important to recognize that a website is legally much more complicated than designing a printed advertising flyer or a company brochure. A certain amount of skepticism towards new technology has given rise to a multitude of legal issues. Fundamentally, the imprint and data protection (declaration) must be correct. Product or company statements should always be accurate.
Modix:
What are the risks of ignoring the legal aspects of an internet presence?
Dr. Dirk Lindloff:
The most unpleasant and probably most costly experience that a car dealership can have in the commercial operation of an internet presence is to receive a warning. If it is justified, legal fees in the four-digit range can quickly result. On closer examination, however, it turns out that a large number of written warnings would not stand up in court.
Modix:
What would you recommend to a car dealership that receives a warning due to its website?
Dr. Dirk Lindloff:
In most cases, it makes sense to have a lawyer who is knowledgeable in this area of law review the warning letter. For example, we recently had to deal with "cease and desist letters" in which alleged violations of § 13 of the Telemedia Act were asserted on the basis of the UWG. § 13 TMG is a provision that regulates data protection issues.
Modix:
What is your assessment of this situation?
Dr. Dirk Lindloff:
In data protection, the state exercises its monopoly on power itself, i.e. the federal states have created authorities that are responsible for monitoring data protection regulations and, if necessary, can also impose substantial fines. It therefore seems highly questionable whether written warnings can actually be justified in this area. The topic of data protection is currently the focus of particular attention, which is probably also due to the discussion about the Google Street View internet service from 2010. The state data protection officer in Rhineland-Palatinate, after consulting with the data protection authorities of the other federal states, recently pointed out that Google Analytics should also be classified as problematic in terms of data protection.
Modix:
What is the data protection challenge of this service and what would you advise car dealerships that use this service?
Dr. Dirk Lindloff:
Google Analytics is a concept that has been around for years. Nevertheless, it is only now that data protection authorities are increasingly addressing the issue of Google Analytics. Therefore, there is an urgent need for action. Car dealerships that use Google Analytics on their website are responsible for data protection. The data protection declaration provided by Google does not relieve them of this responsibility and is not sufficient for the authorities to allow the standard version of Google Analytics to be used.
Modix:
In light of this, what is your legal assessment of the hype surrounding Twitter, Facebook and others, which is only just beginning?
Dr. Dirk Lindloff:
Most of these services come from countries that cannot keep up with the strict German standards of German data protection law. As a website operator, you have to be very careful here. Techniques such as the Facebook "Like" button are often provided by Web 2.0 providers as so-called Javascripts. These JavaScript functions are often suspected of processing the personal data of all visitors to the website simply by viewing the car dealership's website. However, as the responsible operator, the car dealership is liable to the German data protection authorities for these functions, up to and including a possible fine. It is not particularly helpful to have relied only on the name of the "big provider". Simply integrating these functions into the website or having them integrated is therefore not recommended. From a legal point of view, it is the car dealership's responsibility to check the data protection issue or have it checked.
Dear Dr. Lindloff, thank you for this conversation.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.