Flying jurisdiction for Youtube not at the end?

The Düsseldorf Regional Court has ruled in a preliminary injunction proceeding that the UWG amendment of December 2020 did not completely abolish the so-called “flying” jurisdiction after all.

The case in question involved an advertising video on YouTube regarding the scope of services of a home server.

Since YouTube can also be accessed in Düsseldorf and the defendant would also address persons in Düsseldorf, the Regional Court of Düsseldorf has local jurisdiction. § 14 para. 2 p. 3 no. 1 UWG excluded. The place of jurisdiction of the place of commission given according to Section 32 of the Code of Civil Procedure was not pursuant to Section 14 para. 2 p. 3 no. 1 UWG excluded. The exceptional circumstance of § 14 para. Contrary to its (in this respect misleading) wording, Sec. 2 Sentence 3 No. 1 UWG does not cover all unfair conduct in electronic commerce or in telemedia, but is limited in its meaning and purpose to those infringements in which the asserted legal infringement is factually linked to conduct in electronic commerce or in telemedia.

The restriction of the flying jurisdiction for tortious acts introduced by the Act to Strengthen Fair Competition was to be extended by the draft amendment ultimately adopted (in which the initially planned almost complete abolition of the flying jurisdiction for domestic cases [see Section 14 para. 2 of the German government’s draft bill, BT-Drs. 19/12084, p. 10] was dispensed with in favor of the adopted provision) to the infringements considered particularly susceptible in the context of abusive warning letters (cf. Beschlussempfehlung und Bericht des Ausschuss für Recht und Verbraucherschutzs, BT-Drs. 19/22238 p. 18). In the legislative process, violations of information and labeling obligations on telemedia were seen as such (warning) abuse-prone violations. This finding was based on the consideration that in online commerce, infringements could be easily and automatically detected through the use of crawlers and that there were numerous special information obligations (cf. Resolution Recommendation and Report of the Committee on Legal Affairs and Consumer Protection, BT-Drs. 19/22238 p. 16; draft bill of the Federal Government, BT-Drs. 19/12084, p. 32).

This group of cases, which is the subject of the Act to Strengthen Fair Competition, is limited to the meaning and purpose of the provision of Section 14 (1) of the German Civil Code. 2 S. 3 No. 1 UWG corresponding to its regulatory scope. Any other view would not only be inexpedient and impracticable, but would amount to the far-reaching abolition of the place of jurisdiction for tortious acts, which was precisely not intended by the final version of the Act to Strengthen Fair Competition. This would be the case if Section 14 (1) were to be understood in accordance with its wording. 2 S. 3 No. 1 UWG is no longer applicable to business activities that are disseminated using modern communication technologies and leads to results that are not objectively justified.

The Court of First Instance also gave examples of the interpretation of the law adopted by the Court of First Instance:

For example, legal action would have to be taken against a disparagement that is unfair pursuant to Sec. 4 No. 1 UWG, the offer of an imitation that is unfair pursuant to Sec. 4 No. 3 UWG, unreasonable harassment unlawful under Section 7 UWG, unfair aggressive conduct under Section 4a UWG, or unfair misleading conduct under Sections 5 to 6 UWG, a distinction would have to be made in each case as to whether the challenged conduct – specifically, for example, the individual addressing of a consumer, the publication of a sales offer or an advertisement – was brought to the attention of individual consumers or the public via telemedia or electronic commerce, or via the Internet. in electronic commerce to individual consumers or the general public, or via traditional media or in stationary trade, at markets and in mail order business not conducted via telemedia. Such a distinction, which is not to be made under the applicable substantive law, would have the consequence that action could be taken nationwide against a commercial for mountain boots that disparages competitors or misleads customers about product characteristics if it is distributed as a cinema advertisement, whereas action could only be taken in Hamburg against the same commercial of an entrepreneur based in Hamburg who has the commercial played via the Internet using geo-targeting exclusively in Bavaria in order to reach consumers specifically located there. Furthermore, a competitor based in Bavaria who initially only noticed the cinema advertisement and took action against it in Munich would have to initiate further proceedings in Hamburg if he later came across a version of the advertisement on the Internet that differed in detail.

Publishing promotional videos on YouTube would also not be directly related to e-commerce. In the present case, the proceedings regarding the publication of the videos would be based on a violation of the prohibition of misleading statements (Sections 5, 5a UWG) and would thus affect provisions that are linked to the overall impression created by the commercial act and not to its distribution channel. This is shown by a control consideration with regard to the question of whether the present infringement would also exist if the advertising measures at issue had not been published on the Internet, but in advertisements, catalogs or on television.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.