On point of order

Friday, November 10, 2006 at 2:41 | Posted in Bloggers' rights, Blogosphere, censorship, Germany, internet, Legal | 11 Comments

My post Maul halten und weiter dienen has prompted some response both here and elsewhere. My liberal usage of legal terminology seems to have caused some confusion. This post is meant to straighten it out and illustrate the legal proceedings with a practical example.

When I wrote about suing people and lawsuites, it does not necessarily have to be an actual lawsuite filed in a court of law in the German judicial practice. Sometimes it is but most often the person to be sued gets something which is called an Abmahnung. It is basically a letter demanding you to do something or not to do something but the difference with a regular letter is that you must pay some legal fees even if you agree to do or not to do what is required.

If you refuse and the counter part thinks they have a case against you, they would then file the actual lawsuite. The problem with this practice is of course that very few ordinary bloggers could afford to take their chances in a court of law. Those who issue the Abmahnung are more often than not financially better covered than an average blogger.

Let us take a practical example of it. This image consists of pictures taken by me:

Since I am the author of the pictures I also have the legal copyright to them. The photos are my intellectual property.

If I were to detect them published in your blog without my consent, I would obviously not be happy about it. I would be specially unhappy if your blog had commercial elements in it. But if it was an ordinary blog without a financial interest, you would have been likely to get my consent to use my photos if you had just politely asked.

If you had used the pictures without asking me, you would be likely to receive an e-mail from me asking you to take them off the web. As an intelligent person you would probably do so and both of us would be happy. End of the story, no hard feelings.

But if the pictures had been used in a German blog and the copyright owner was also under German jurisdiction, they may have gone about it differently. The blogger (i.e. you) would have received a letter from my lawyer, an Abmahnung. It would depend on how hard I want to get on you if I would settle with the pictures taken down or if I would demand additional compensation, i.e. money.

But let us assume I would be happy with removing the piccies (which is a fair assumption). You would still be very likely to have to pay my legal costs. In plain words, rather than sending an e-mail asking you not to show my pictures in your blog, I would have my lawyer write the letter and send you a fat bill for his services.

Copyright issues are more or less clear because the rightful copyright owner can in most cases be established easily. But the issue becomes trickier when other sorts of immaterial rights cause the dispute. When it comes to such terms as personal rights or slander, you may not want to go to court against a billionaire who claims foul even if you think you were just exercising your freedom of speech. Even the cost of the first Abmahnung could be high enough, not to mention the potential cost of loosing a libel case against somebody who can afford a top legal representation. This is obviously why Kai decided to self censor his wiki. Removing the articles about Johanna Quandt and Manfred Stolpe was a precautionary action.

The issue of the Dunkelkammer in Hamburg is an interesting detail in this picture. Now, why would somebody in Kassel choose to sue somebody in Berlin in Landgericht Hamburg? Would it not be logical to sue in either Kassel or Berlin?

As you can read here, entries published in the web can be sued at any German court. Thus, it would make sense to sue at the court which has in its earlier rulings placed less importance on freedom of speech than immaterial personal rights.

Edit: There is a related post in Transblawg.