A Bavarian law firm is famous for its porn industry clients, but the problem here was naming on its website the individuals’ names it acted against on behalf of those clients (also referred to as the “porn-pillory”). Injunctions were applied for in two Courts to prohibit the practice. Dr. Stephan Bahner of Osborne Clarke Cologne reports.
Topic: Privacy
Who: German law firm Urmann + Collegen vs. approx. 150,000 Opponents
When: September 2012
Where: Germany
Law stated as at: 11 September 2012
What happened:
Sharing files in peer to peer networks is to some extent functional and convenient. However, when sharing material that is protected by copyright without permission, one might receive a warning letter and might be asked to cease and desist from doing so.
Furthermore, in the event that such warning letter is being sent by a lawyer, the lawyer most likely asks for a reimbursement of his fees. If the fees are not being paid voluntarily, one would have to go to court and sue the respective opponent (even lawyers are not allowed to take the law into their own hands).
A German law firm, Urmann + Collegen (“UC”) recently threatened to publish a list of opponents of its clients to whom UC had sent warning letters. The delicate part is that the law firm is particularly representing blue movie production companies going after people that allegedly illegally share the companies’ movies via P2P-networks.
Some of the recipients of these UC warning letters apparently did not behave like the law firm required them to (in most cases, the issue at stake most probably is, of course, the failure to reimburse lawyers’ fees).
Law firm takes a tougher line
UC then decided to take a harder line towards those people and threatened to publish a “list of opponents in open and pending matters” on its website. Allegedly, such list would contain more than 150.000 opponents. However, according to local media, as a first step, only the “sensitive” cases were intended to be published (e.g. pastoral offices, police stations or Arabian embassies!).
This intended action has made some headlines as the “porn-pillory” (“Porno-Pranger”).
In the ensuing proceedings, UC referred to a decision of the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) in 2007 as supportive of its position.
In that 2007 case. the BVerfG had decided that a law firm is generally allowed to publish a list of clients’ opponents in order to promote its services (BVerfG, Decision from 12 December 2012, 1 BvR 1625/05). However, the opponents in that particular case were companies or business people (mainly from the financial investment sector) and the published list was considered as a simple promotion campaign.
Injunctions issued
In the actual “porn-pillory-case”, upon motion of two opponents, the Regional Court of Essen (Landgericht) and the Local Court of Regensburg (Amtsgericht) as well as the Bavarian State Office for Data Protection Supervision (Bayerisches Landesamt für Datenschutzaufsicht) have now issued injunctions against UC restraining it from making the opponents’ names public.
The courts and the office were of the opinion that the publication of the opponents’ names would violate their personality rights and infringe data protection laws. Unlike in the 2007 BVerfG-case, UC’s intention was not to promote its services by way of advertising what prestigious companies they have sued in the name of their clients but only to push the opponents to pay. Particularly, as it is common knowledge that this law firm mainly represents porn industry in copyright violation matters, respective opponents may fear to be linked to such allegations.
UC states that it will appeal against the decisions and that, in the meantime, it will not publish the list before the proceedings are closed.
Why this matters:
Making private (and even more intimate) affairs public is a big invasion of an individual’s personality rights. The intention to make an individual pay an invoice does not, even if that invoice is properly due and owing, justify the publication of private or intimate information of that person.
Even if it is tempting to pressure people to pay their invoices by way of exploiting private information, this is not an appropriate approach. According to German law, even threatening to do so causes a so called risk of first infringement (Erstbegehungsgefahr) that, in turn, allows concerned persons to claim omission (as in the porn-pillory cases by way of a warning letter and, following, respective court actions).
For the sake of completeness: law firms are still allowed to advertise their services! However and this pertains to any advertiser advertising is unlawful when personality rights of individuals are being violated.
Dr. Stephan Bahner
Associate
Osbeorne Clarke, Cologne
stephan.bahner@osborneclarke.com
