Undoubtedly moved by the conviction that the only bad press
you can get is your obituary, Bavarian law firm Urmann + Collegen (U + C) have threatened
to publish a list of its clients’ opponents in “open and pending” matters. U +
C are charmingly referred to as "Porno-Anwälte" ("porn lawyers") by a local media outlet (here),
not because of any alleged moonlighting activities in the adult entertainment industry,
I hasten to add, but because they are notorious for representing copyright owners from said industry.
U + C rely on a recent decision by the
Bundesverfassungsgericht (Federal Constitutional Court, BVerfG), where the
judges held that a law firm may in principle publish lists of companies or
notable individuals it has acted against (12 December 2007, 1 BvR 1625/06, available here). The case concerned a
list of commercial entities, mainly banks and insurance companies, which was
used as an advertising tool to attract new clients – look at all the big names
we have sued (or who have sued our clients…)! The BVerfG contended that there
is nothing dishonourable about being involved in a legal dispute, so the mere
mention that the firm has acted against a certain company, without even
claiming to have won the dispute, cannot shed a dubious light on that company.
It is more than doubtful that the BVerfG would detect an
advertising function in naming private individuals that have no claim to any
fame whatsoever, especially if the law firm in question is primarily associated
with acting against alleged filesharers/downloaders of porn and software. The
only conceivable aim of announcing the publication of a list of opponents is to
shame John or Jane Smith (who may well be no more than the ISP subscriber and
never have actually downloaded anything) signing a cease and desist undertaking
and paying the lawyers’ fees, which would clearly contravene privacy and data
protection laws.
This view is shared by the Landgericht (Regional Court) Essen
and the Amtsgericht (District Court) Regensburg, both of which issued
injunctions restraining U + C from publishing the respective applicant’s name
(LG Essen, 30 August 2012, 4 O 263/12, available here; for a report on the AG Regensburg injunction, see here).
The Bayerisches Landesamt für Datenschutzaufsicht (Bavarian State Office for
Data Protection Supervision, BayLDA) also issued a preliminary order enjoining
U + C to desist from publishing a list of opponents (see press release here).
U + C have grudgingly declared that they will not publish a
list of opponents for the time being, but complain that they were not heard
before the BayLDA, that the BayLDA was wrong on both the facts and the law, and
that they will take matters to the competent administrative court (see U + C website here).
According to the BayLDA’s press release, U + C were informed in advance of the
planned order and given the opportunity to respond, but failed to meet the
prescribed deadline.
Interestingly, U + C have not publicly responded to the
civil court injunctions – maybe they do not want to put ideas into the heads of
the hordes of people who received warning letters from them (allegedly up to
150,000; see report here).
Imagine thousands of people taking out injunctions against the firm – which would
have to bear the costs of all those proceedings…
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