Wednesday 5 September 2012

Law firm gets sued over threats to name and shame alleged downloaders

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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