Tag Archives: Germany

German Courts Refuse to Bow to US Pressure in MegaUpload Case

A German court in Frankfurt (Beschl. v. 14.05.2012 – Az.: 5/28 Qs 15/12) has ruled that a request for mutual legal assistance from the United States regarding stripping assets belonging to Kim Dotcom, has no basis for legal action in Germany.

Mural of Kim Dotcom painted by Cart’1 courtesy of Thierry Ehrman – Abode of Chaos.

Kim Dotcom, the founder of the file-sharing MegaUpload site was arrested in Auckland, New Zealand in January of this year. He had been sought by the US authorities on copyright infringement charges relating to pirated content on his websites.

As a part of the criminal investigation against the file-sharing service Megaupload, certain assets were supposed to be removed. This request was issued by the American FBI when they called for legal assistance from the German authorities.

The Frankfurt judges have since rejected this request, because it contains insufficient evidence. The US legal team failed to demonstrate that a web hosting service for the illegal upload of copyrighted files, amounts to a  criminal offence.

According to the German ‘Telemediengesetz’ (communications legislation), a hosting service for foreign files will generally not be accountable unless the host had active knowledge of illegal activity. The judges also emphasised that the concept of knowledge is limited to positive knowledge. Therefore if the service provider believes that it is possible or likely that a specific piece of information is stored on their server, this is not sufficient evidence of knowledge of abuse.

According to the court ruling, there is no legal obligation to monitor the transmitted data or stored information or to search for any illegal activity.

Since the US legal team did not mention any other circumstances that could constitute a criminal offence in their request for mutual legal assistance, the German court concluded that their request for the recovery of assets is unfounded.

German Agency Wants to Snoop Social Networks to Analyse Creditworthiness

A German credit agency in is planning to analyse the creditworthiness of individuals by using information gathered from online sources such as Facebook and other social networking sites.

Schufa, Germany’s  largest credit agency intends to assess peoples ability to make repayments by using “crawling techniques,”  such as those used by Google, for the purpose of “identifying and assessing the prospects and threats.” A spokesman for Schufa told Spiegel Online that “everything is happening within the legal frameworks in Germany.”

Nevertheless, the proposal raises serious concerns over assessing a person’s reputation from information found on the web. Schufa is planning to analyse automatically recorded information on the Internet such as on social networks, and this can then be linked to the stored data gathered by the credit agency. Although Facebook pointed out that according to its terms and conditions, automatic registration of members was actually not permissible.

For a country with some of the strictest privacy laws in Europe, it is no surprise that the proposal has come under a strong criticism. Analysing data related to personal relationships which can be found on Facebook and Twitter in order to judge a persons creditworthiness is a severe invasion of privacy.

Since the German broadcaster NDR reported on the research project last  Thursday there has been a public outcry. Numerous privacy advocates and politicians have strongly criticised the proposal.

Sabine Leutheusser-Schnarrenberger,  the German Justice Minister, was quick to condemn the credit agency’s plans. She told the Spiegel that Facebook “friends and preferences” should not prevent an individual from, for example, being able to obtain a mobile phone contract. Leutheusser-Schnarrenberger stated “Schufa and other credit agencies should disclose their full intentions of using Facebook data to check creditworthiness.” She said that the data used to determine someone’s credit report is already controversial and called for the process to be made “fully transparent.”

On Thursday, the Justice Minister was joined by Consumer Protection Minister Ilse Aigner in warning Schufa and HPI about tracing individuals on social networks, and requested further information on the research plans. Rainer Brüderle a parliamentary member of the Free Democrats (FDP) stated that “Schufa’s plans go too far…social networks, like a circle of friends, are part of a person’s private life, and should therefore not be tapped.”

However, the Hasso Plattner Institute (HPI) which was to be commissioned by Schufa to develop a proposal for the project, has now pulled out due to mounting criticism from politicians and privacy advocates. The privately-funded information technology institute was going to explore the extent to which information from the Internet can help in evaluating the creditworthiness of individuals. HPI  announced that it has withdrawn from the contract with Schufa.

In a statement, the institute claimed there had been some “misconceptions” by the general public about their research approach. HPI Director Christoph Meinel stated that the project could no longer be carried out with the ease and in the “unburdened” conditions necessary.

The move by HPI, a clear blow for Schufa, has been welcomed by critics of the proposal, but it is unclear whether the credit agency intends to pursue the project regardless. The proposal could be hugely damaging to the privacy of individuals, linking their private relationships and their online reputation to their creditworthiness seems hugely invasive. Schufa’s plans could have detrimental effects on a person’s everyday life and further highlight the dangers of disclosing personal information on the internet. It is unclear whether Germany, a country with some of the most sophisticated privacy laws in the world would be able to justify such actions in accordance with its legal framework.

Tweet Your Victim/Facebook Your Perpetrator

While the appalling behaviour of Twitter users in the Ched Evans case has caused an uproar in the UK, there is a contrary case taking place in Germany. The recent social media use in the UK saw a rape victim being named on Twitter, whereas the German case involved a woman naming a man who had been harassing her by sending her sexually explicit messages. Ariane Friedrich an olympic high jumper who trained as a police officer, posted the name and location of the man who had been sending her the messages on Facebook. This has caused a huge discussion in Germany, where privacy laws are known to be particularly stringent.

The man allegedly sent her images of his genitals with the sexually explicit/suggestive message stating that he had “just showered and shaved”. Ms Friedrich became enraged and posted his name and location on Facebook, adding that she will be filing a complaint with the police shortly.

Since she posted the message 2200 people have clicked the “like” button under the post along with 400 comments. In a later post Ms Friedrich explained  that she has “carefully read” through both supportive and critical comments. She added that “of course it had been a big step to make such a vulgar e-mail public”, but she said that this is not the first time she has been insulted and sexually harassed. She also stated that she had previously had a stalker. She claimed that she now felt it was time for her to act and to defend herself, even this posting sparked a huge reaction leading to a further 1100 comments. While some argue that her behaviour was completely justifiable, others claim that her self-administered justice amounts to an erosion of the law.

Her liability would depend on whether her claims are genuine or not and whether the named man actually sent those messages. If her assertion is proven to be true, then she will not be liable for defamation or libel. However if this is not the case, the situation could become more complex. In a well known German tabloid, the man (described in the German media as ‘a man with the same name as the alleged author to the messages’) claimed he had been hacked and has closed his Facebook account as a result. However it is probably unlikely that a judge would make the assumption that Ms Friedrich is accusing an innocent person. Therefore seems unlikely that she will be charged in relation to defamation. However she could be liable under civil law as she breached his right to privacy by making his personal details public. If the named man went to court over the issue he could possibly win in a civil claim, if the circumstances surrounding the publication of his details had sufficient gravity.

While the Friedrich case is very different to the Ched Evans/Twitter case, one case infringing the victims privacy while the other concerns the alleged perpetrator.  Germany has much stricter privacy law than the UK, mainstream media are much more restricted than in the UK. Naming a rape victim, when they should have anonymity for life raises serious concerns about protecting victims. The contrast between these two cases highlights different aspects of privacy law and the ethical minefield surrounding social media.

International Child Abduction – A Growing Legal Maze?

The recent case of Marianne Grin in Russia has drawn attention to international child abduction and the legal failings relating to these cases.  After losing custody, the mother of four took her children to Russia, from their home in Italy, and is refusing to return them to their father. Like many child abduction cases, it has an international dimension – the children have dual American/Russian citizenship and are Italian residents. As the complexities of international child abduction continue to grow, within an increasingly globalised world, there is a growing  need for laws to govern these issues arising from cross border relationships.

The Grin case is scarily similar to that of Elke Mellersh. Ms Mellersh abducted her children in the previous year and fled to Turkey, she then committed suicide after taking their lives in November 2011. She had disappeared along with her children, fearing they would be taken from her, after the German courts had declared her  mentally unstable, and had taken steps to revoke her custody. Like the Italian courts, the German courts strongly favour the mother in custody battles and it is not easy for the mother to lose custody. In Germany, women gain exclusive custody in almost 100% of cases where children are under the age of 6, and in cases with older children this drops no lower than 95%.

As in the Grin case, the reporting of the  story was radically different in Turkey, the ethnic home country of Ms Mellersh, than it was in the UK. Despite also being a German case, the story went largely unreported in Germany, where privacy laws prevent newspapers from covering suicide cases. Ms Mellersh, like Ms Grin, also appeared to be escaping from court rulings she disagreed with. In both cases, allegations of abuse levied against the father, and numerous other people, were proven by the courts to be unfounded. She was a German citizen with Turkish heritage, the children were dual nationals of both Germany and Britain. None of them had ever lived in Turkey, but like Grin she had tried to reinvent herself as a “persecuted mother” fleeing to her home country. She was portrayed as such in the Turkish media, which took a nationalist stance and sensationalised the case without addressing or seeking factual information.

The most painful thing about this case is the possibility that theirs deaths could have been prevented. Undoubtedly, there were huge failings in Germany and in Turkey, where the children had been kept illegally for some time before their deaths. What would have happened if their whereabouts was known earlier? Would the Turkish authorities have complied with both German and international laws to protect the children? Would the Turkish authorities have taken or attempted to take the necessary steps to ensure their safe return? There are several laws in place which applied to the Mellersh case, such as the Hague Convention Against Child Abduction. The difference in the Grin case is that the whereabaouts of the children is known and these laws can still be enforced. Turkey which is also part of the Hague Convention is notably slow at complying with the convention effectively in such cases. Russia can still prove that it is able to implement relevant legislation and uphold the convention and it’s values by returning the children to Italy.

In his article in the Huffington Post, Harris Silver raised the issue of the importance of laws within and between countries? I agree that these laws are hugely important, especially in a world where transnational cooperation is becoming an essential part of legal practice. In relation to child abduction, international treaties are often essential due to the cross border nature of a growing number of these cases. That said, the application and enforcement of these laws is vital if they are to be effective in applying to those it seeks to protect.