Fri, Dec. 06, 2019

App-Aided Crowdwork Contract Can't Imply Employ

CK - Washington.   A framework contract for on-demand work assignments does not con­sti­tu­te em­ployment in the matter 8 Sa 146/19 decided on De­cem­ber 4, 2019 by the Appeals Court for Employment Matters in Bavaria. The fra­me­work agree­ment enab­les a com­pa­ny to pub­lish re­quests for bids to per­form spe­ci­fic tasks with­in a defined timeframe at va­ri­ous lo­ca­ti­ons near in­ter­ested bid­ders. The par­ties in­ter­act through a soft­wa­re pro­gram. A per­son who per­for­med a task ar­gued it be­ca­me an em­ployee, lea­ding to tax, so­ci­al se­cu­ri­ty con­tri­bu­ti­on, in­su­ran­ce and em­ploy­ment is­su­es.

The court issued a press release in German that describes the par­ti­cu­lar task at is­sue. The court de­ter­mi­ned that the framework contract does nei­ther re­qui­re the com­pa­ny to post re­quests nor the per­for­mer to con­si­der or ac­cept a task. By con­trast, em­ploy­ment sup­po­ses at a mi­ni­mum in­struc­tion-ba­sed and com­pli­an­ce-en­for­ced work in a re­la­tion­ship where the per­for­mer is de­pen­dent on the com­pa­ny. Ty­pi­cal­ly, an em­plo­yee would need to ob­ser­ve ru­les about ti­me, lo­ca­ti­on and con­tent of an ac­ti­vi­ty whi­le the em­plo­yer would in­te­gra­te the em­plo­yee into its fa­bric, the court noted.



Thu, Oct. 17, 2019

Damages for Violation of Forum Selection Clause

.   On October 17, 2019, the highest German court for civil matters issued a ruling and a press release in the matter III ZR 42/19 on the liability for damages resulting from the vio­la­ti­on of a forum selection clause.

The parties bound any disputes resulting from their contract to a court in Bonn, Germany, but the plaintiff sued the defendant in Washington, DC. After spending $196,118 on its jurisdictional chal­len­ge, the defendant won a dismissal, the plaintiff sued in Bonn, and the defendant counter­clai­med for the expense incurred in its prior defense.

The Supreme Court in Karlsruhe, Bundesgerichtshof, ruled in the defendant's favor. A forum se­lec­ti­on clau­se is binding, its violation constitutes a breach of contract, and the necessary expense is proxima­te­ly cau­sed by the breach, it announced in its press release headlined Schadens­er­satz­an­spruch bei Verletzung einer Gerichtsstandvereinbarung durch Klage vor einem US-amerikanischen Gericht.



Wed, Aug. 14, 2019

Ranking Portals: Required Privacy Consent

CK - Washington.   The data of physicians involuntarily listed in ranking databases for patient-facing internet portals has been the subject of several court decisions under German data protection law and the EU General Data Protection Directive. The latter was implemented in Germany as the Datenschutzgrundverordnung, DSGVO, and has now been applied to the same issue: May such a portal list physicians' data without their consent, permit patients to add evaluations, and add its own advertisements sold to competing physicians?

In 2018 and before the DSGVO, the Supreme Court in Civil Matters had ruled in the matter VI ZR 30/17 that such listings are compatible with the old data protection law as long as the forum maintains a neutral representation of information. The balance of privacy interests and constitutional free speech tipped in favor of free speech.

In the recently-published decision of the Bonn district court in 18 O 143/18, the same portal was ordered to remove all data and evaluations of the plaintiff-physician. The court also issued an injunction to prohibit the inclusion of the physician in the database and portal as long as the numerous neutrality factors listed in the opinion were being violated. Among other factors, the court explained that offering paid subscriptions to physicians, which allows them editorial control, while displaying such information and advertisements next to profiles of non-subscribing parties is not information-neutral. Under the March 28, 2019 judgment, the balance of interests tips in favor of privacy.



Wed, Apr. 24, 2019

Cross-border Surrogate Pregnancy: Who is the Mother?

CK • Washington.   A surrogate mother in the Ukraine bore the child of a German couple. Shortly after the birth, it brought the child to Germany. Which law applies to the issue of who would be certified as the mother for legal purposes? On March 20, 2019, the German Supreme Court, Bundesgerichtshof, decided. The facts point to the application of German law.

Under it, the mother is the person who gave birth to the child. Ukrainian law and the intentions of the parties may have been different, but conflicts of laws rules point to the applicability of German law. As a result, the German mother would need to adopt the child as her descendant in order to become the legal mother of what evolved from her egg and her husband's sperm, the court ruled in the matter XII ZB 530/17.



Sat, Jan. 05, 2019

Chat with Court or Mandatory Presence?

CK • Washington.   The German constitution grants courts flexibity in ac­com­mo­da­ting parties with special needs. Distance-chatting with the court instead of a physical pre­sen­ce falls outside of the constitutional bounds, however, the Supreme Con­sti­tu­ti­o­nal Court in Karlsruhe announced with a January 3, 2019 press release and the simul­ta­ne­ous pub­li­cation of its November 27, 2018 opinion in the matter 1 BvR 957/18.

The court found the accommodiations provided by the lower court sufficient: Advance submission of material, representation by counsel, and use of a computer in the court­room to communicate via a chat-like protocol. Plaintiff's additional demand to chat with the court from his home would violate other constitutional principles, im­me­di­a­cy and transparency, and unduly stress the limited resources of the judiciary. At­tor­ney Ma­ri­an Här­tel blogs about a similar case where an autistic client complied with the sum­mons, appeared, and--due to illness-induced lack of control--be­ca­me phy­si­cal­ly ag­gres­sive in response to statements from the opposing party: Gerichtsprozess via In­ternet-Chat.



Fri, Oct. 26, 2018

Recently Translated German Law Source Documents

CK - Washington. The German Law Archive--unaffiliated with the German American Law Journal--circulated an update of its archive on October 25, 2018, listing the following new entries from the Federal Constitutional Court in Karlsruhe:
BVerfG 17 January 2017: 2 BvB 1/13, on the application of prohibition of the National Democratic Party.
BVerfG 10 October 2017: 1 BvR 2019/16, on gender identity.

The archive also added an appendix to the previously published translation of the Road Traffic Regulations. The archive offers a subscription service.



Wed, Aug. 08, 2018

Republishing an Internet Photo Without License

CK - Washington. Under German law, a photographer authorized a travel website to publish one of his photos. A student copied the photo and integrated it into a school paper. The school published the paper with the photo on the internet. The photo­gra­pher sued the state for damages under copyright law. On August 7, 2018, the Euro­pe­an Court of Justice in Luxembourg as the final appeal decided the matter under Ger­man law and the E.U. copyright harmonization regulations.

The court found in favor of the plaintiff after the German Federal Supreme Court for Civil Matters in Karlsruhe had referred the matter to it. The fact that the travel website does not restrict visitors will not reduce the right of the copyright owner to control which permissions to attach to his copyrighted work. The republication by the state-run school is unau­tho­ri­zed because every website addresses a new audience. A copyright owner may have a particular audience in mind when granting a license; publication to another audience requires a new license -- at the owner's discretion.

The court distinguished the republication from linking to the original publication. It states that linking is an essential fea­tu­re of the the world wide web. Linking is a fea­tu­re that supports the essential purpose in harmony with copyright law, while co­py­ing and republishing frustrates that harmony, see (a) Press Release Land Nordrhein-Westfalen / Dirk Renckhoff (b) Application and Decision ECLI:EU:C:2018:634.


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