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complaint against civil order imposing injunctive literal quotes from a lawyer's letter

The individual constitutional complaint is directed against a civilian court conviction with which the applicant was prohibited, literally from a lawyer's letter to quote.

The complainant operates a website on which he "N. Published online newspaper. In 2006 he proposed, where an article to publish the R. He had written a book about a bank and was therefore taken to cease to deliver. The article dealt with that case, in particular the behavior of the person authorized by the applicant bank attorney H. a court date. As the complainant wished to illustrate the article, he asked in writing to the pillion on the S. of H. if he could use an existing law firm on its home page photo for publication. The request was in a partly hostile and ironic Ton held. It began with the salutation "Dear Mr. S." and contained the announcement that the complainant "in the future can not be intimidated" and you might meet again before the constitutional court would. Next it was
then says, "One more question: Since I will publish in the next issue an article on N. Rs appointment in Berlin, where your colleague H. was involved so beautiful, I would be grateful if you would would allow to use the photo of your site for it. Tell me please is also in tandem, to see at what point Mr. H.. That you are in the middle, should clearly yes be. Then our readers know well how to present you and your colleagues in public ... "

The S. replied with an e-mail dated 12.09.2006, in which he challenged the use of images of him and his pillion H. and threatened with legal action. Literally, it was said :"... we expressly reject any use of images of Mr. H. and myself. If you are here to offend, we will take independent legal action. We point out that we recently also other media companies to publish a portrait of our part, have banned. "

The same day, the article on the website of the complainant. It reported over the course of a hearing, the occurrence and the appearance of H which were derogatory comments. The text was accompanied by an editor's note that tells the framework that was on the page request "an impressive picture of his home page, law firm 'to Rs gloss" did not want to release. In addition, the content of the e-mail of the S. and a further e-mail with which the H. was also in no uncertain terms the publication of a portrait was challenged, reproduced verbatim. The S.
took the complainant then at the regional court in Berlin for an injunction literal quotations from lawyers' letters claim.

The Judgement of 05.06.2007 was the Berlin court allowed the claim against the complainant in full. The plaintiff had an injunction from S. § 823 I, II BGB in conjunction with § 1004 I 2 BGB because of a violation of his personal rights under Article 2 I GG in conjunction with Article 1 I GG. Although the complainant had mentioned certainly must, that the plaintiffs protest against the publication of his portrait, as if it were a statement, which concerns the privacy of the plaintiff, but only the social sphere. Account will be however, that it was the perfect right of the plaintiff, the question regarding the publication of the picture to deny. As he did so with harsh words and immediately threatened with legal action, he will by the public of his words presented as someone who once threatened with a lawsuit if only a public photo to be published by him. There is thus a reduction in the general personal rights of the plaintiff. In contrast, weigh the public interest, the exact wording of the response of the applicant's experience, only small.

here also with the challenged order of 19.05.2008 rejected the Court of Appeal dismissed the appeal of the complainant. The appellant is the alleged failure to claim from § 823 I, II BGB in conjunction with § 1004 I 2 BGB, because his general right to the information outweighs the public interest here. True, the Berlin court had assumed that the interest was limited to the exact wording. Also, in the opinion of the Court of Appeal to be perceived by the publication of the incorrect impression that the applicant responds to simple questions with dire threats.

the complainant, now his freedom violated fundamental right under Article 5 I GG and his fundamental rights equal justice under Article 103 I GG.
By the Court of Appeal dismissed the appeal without hearing the complainant, it had the right to a fair Hearing, under Article 103 I GG, injured. It took the complainant the opportunity to present its arguments in a hearing orally.

These are the challenged decisions of the Berlin court and the Court of Appeal in error by a breach of the general right to assume the plaintiff and thus had the freedom of the complainant, under Article 5 I GG, injured. The page was must have been clear due to the request of the complainant's intention to publish it. As he had answered yet, without noting that he is not a distribution of his response was in agreement, it was not evident which could have affected the accurate reproduction of the same personality issues. Even if EXIST but an invasion of personal rights protected by the interests of the applicant should fail then the required balance in favor of freedom of the complainant. In this case would affect in particular that the challenged injunction develops an intimidating effect on the use of the fundamental right under Article 5 I GG.

According to the Federal Constitutional Court, the constitutional complaint is only partially acceptable. That the complainant alleged violation hearing is not attacked with the appeal of a § 321 ZPO has, however, is the admissibility of the constitutional complaint does not prevent. The extent of its admissibility, the constitutional complaint (relating to the violation of Article 5 I GG) is obviously justified.

a violation of his right to be heard, to be present here, however. From the § 23 I 2, § 92 BVerfGG sufficient requirement to state reasons is not the complainant's allegations. He has argued that the requirements of § 522 II ZPO contrary to the opinion of the Court of Appeal had not been met. About his appointment would not have so may be decided without a hearing. This is the opinion of the Constitutional Court, however, still not even the possibility of the material breach hearing conclusively established. Article 103 GG I give no right to a hearing. The complainant has also stated that the Supreme Court has taken into account be all the pleadings, evidence and arguments at a hearing he his argument "again" could have imposed. Against this background, there is evidence not seen that it would have been due to a hearing to a different decision. The conviction is based not on the alleged violation of Article 103 I GG.

question is remains whether the constitutional complaint in respect of a breach of Article 5 I GG is well founded. Here, the standard of review of the court is complied with. The Constitutional Court examines only originary constitution, because it is not super appeal instance. The decisions would be disproportionate to the complainant's fundamental right under Article 5 I GG injured.

The conviction for failure literal quotations from the plaintiff lawyer's letter could violate the complainant's fundamental right to engage here in the scope of Article 5 I GG is given. In the scope of non-value judgments also include statements of fact, they contribute to the formation of opinions can help. This is a quote such as the one at issue you can be the case. The reproduction of the negative response was clearly capable of contributing to an assessment of the applicant. The decisions of the courts to say directly in the access granted by Article 5 I GG scope of the complainant.

The fundamental right under Article 5 I 1 Basic Law is not guaranteed without reservation, but is acc. Article 5 II GG under the limits of general laws. Among these laws are understood to be directed not against the expression of the opinion itself, but serve to protect an absolutely without regard to a certain opinion to be protected legal interest. The general laws are also used here, the provisions of § § 823, 1004 BGB.

The Berlin court and the Court of Appeal in this case have not denied that the statement falls within the scope of Article 5 I 1 Basic Law. Its view that it violated the general right of the plaintiff and the fundamental right simply get the priority over the freedom of expression is constitutionally unsustainable.

The fundamental right under Article 2 in conjunction with Article I 1 I GG mediated by the case law of the Constitutional Court to its bearer is not entitled to be shown publicly only as to how he is even acceptable. Even the adoption of the courts that the publication the quote the general right to affect the plaintiff met this considerable concern. As far as the Berlin court focussed objective of that the plaintiff "presented to the public 'will, this may be understood as referring to the legal concept of the pillory effect. This can lead to condemnation, that the regular expression is allowed to prevent a true fact from the social sphere in the individual case with regard to the overriding interests of the person concerned.

This law is not constitutionally objectionable, but not its application to this case to understand. The Judgement of reasons can be not realize that by quoting the applicant could take a serious condemnation of the average audience for itself, as the adoption of a shaming is provided.

The additional consideration of the Court of Appeal, the expression of total call forth a false impression, since it is the plaintiff as someone responds to a "simple request" with dire threats, the Federal Constitutional Court is not convinced. The text, the significance which the quoted mail in general is a "simple request" preceded not be given. As far as the Supreme Court wants the silence of the text refer to the statement that the request no significant Special features have been reported, this is not objectionable in the legal starting point. However, the court has not established such a case in a manner complying with the constitutional requirements.

It also has not considered whether or not the most remarkable in its view field of the e-mail on the assumption that a "simple request" had been preceded, appear far-fetched for the average reader could not. Nor has it acknowledged that the spread of the complainant article contains a variety of critical and disparaging remarks about the Neck, which the reader is also a reference to a "corresponding to the question tabled" must understand. Finally, the Supreme Court not enter and that is expressly stated in the text, the "request" was based on the use of the image for a "gloss" which was written by the defendant and thus do not expect any positive representation of the plaintiff was . The Court did not therefore within the text sufficiently appreciated, and thus the constitutional standards for interpretation in the scope of Article 5 I missed GG falling utterances. Thus, here there is a deficit of the court application.

are also the following considerations on which the courts of their balance between the general have supported the applicant's right to privacy and freedom of expression of the complainant, ie the so-called constitutional in the strict sense, constitutionally unobjectionable. The decisions represent primarily to ensure that the public interest in information is small in the disputed statement. This consideration raises concerns already that the courts have ignored the protection of a fundamental right under Article 5 I GG fundamentally. It may thus also have come to a deficit application of the courts. Although it is in the public interest in information about a major consideration factor in cases of conflict between the constitutionally protected expression of interests on the one hand and personality aspects of the other part of the statement concerned. In the cases of this so-called basic law collision, the production of a practical Konkurdanz is desirable. This does not mean that freedom of expression is protected only under the condition of public interest and may be exercised only support the fundamental right as it were in trust for the democratically constituted community.

"Instead, guarantees the fundamental right under Article 5 I GG primarily self-determination of the individual fundamental right to support the development of his personality in communication with others."

Already from this relates to the fundamental right to be in a trade with the general right to be set weight that can be a potential public interest in information only increased. Given this, it is a constitutionally questionable shortening, if the courts the plaintiff for the sole reason have granted injunctive relief because the general right to the information outweighs the public interest.
The decisions are based on the demonstrated constitutional errors, so the application deficiencies of the courts. It is possible that the courts again been referred to another Decision will come into the matter. Here, they will need to be considered that the expression of true facts, especially those from the realm of social sphere, to be accepted at regular intervals.

Conclusion: The decision of the Constitutional Court deserves special attention. It confirms the superior rank of the constitutional fundamental right under Article 5 I GG. The fundamental right to have a special weight in the interest against the general right of personality. So there is a constitutionally questionable shortening of Article 5 I GG is, if an omission of a statement of fact which contributes to the formation of opinions, only by the preponderance of the general Personal rights over information to the public interest is justified. A little public interest in a factual statement can thus never engaged in the scope of Article 5 I justify the Basic Law.

for legal education, the decisions of the Constitutional Court concerning Article 5 I GG is of particular importance and relevance of high degree. The decision of the First Division of 04.11.2009 on the compatibility of § 130 of the Criminal Code as a non-IV general law with Article 5 I, II GG (1 BvR 2150/08) was processed in April 2010 as part of a degree examination in NRW. Even the decision of the First Division from 04.02.2010, it was decided in which the convictions for incitement to Article 5 paragraph 1 sentence 1 GG violated if they are not a violation of human dignity of the victim and could create (1 BvR 369/04), could easily be the subject of an examination exam. The decision of 18/02/2010, this study also joins seamlessly with the list of exam-relevant decisions of the Constitutional Court to Article 5 of the Basic Law.

found in the practice of the present decision already respect for the Berlin court. In a ruling of 27.04.2010 (27 0 66/10), it lifted a temporary injunction from the Court of Appeal on 25.03.2010. The preliminary injunction forbidding it to the applicant to submit observations to the media to private matters between him and his celebrity son. The Berlin court explicitly referred in its reasoning to the present decision of the Constitutional Court.

The decision of the Berlin court will also discuss the course in this blog.

BVerfG v. 18.02.2010 - 1 BvR 2477/08

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hand donated by mere agreement under § 929 sentence 2 BGB

The plaintiff is the son of the course of this dispute late former defendant, his sole heir, the defendant is present, which started the process. The defendant acquired earlier in 2001, a passenger car manufactured by Nissan, said he financed the purchase price of a loan. This vehicle he left due to a usage agreement to the applicant to pay the running costs had. The plaintiff had the Vehicle as agreed to in his name. After repaying the loan over-funded
sent the bank the vehicle title to the former defendant.

The applicant with the claim that the defendant had stated earlier for three months after the purchase, to give it to the plaintiff, seeks the release of the vehicle record. The father, as a former defendant has the gift, acc. § 516 et seq, in dispute. The AG Emden dismissed the suit because the procedural requirements for a donation of non-compliance and the defect is not, acc. § 518 II BGB were healed. The appeal of the defendants has been rejected by LG Aurich. With a Court of Appeal approved revision pursued by the applicant on his request.

The appellate court stated that common ground is the vehicle to the financing bank was of security. This had waived his rights under the collateral assignment until after completion of installment of the vehicle and sending letter to the former defendant. At the time of the disputed statement was the former defendant has not been the owner of the vehicle and have not had this can transfer to the plaintiff. The former defendant not be contingent right to transfer, since its transfer to an in rem of transfer is necessary for example, in the takeover of the mortgage costs by the plaintiff or the determination of the plaintiff as receiver of the publication have the vehicle record may be. Such is not done here. The alleged in the statement of the former defendant lying formless donation pledge was void for violation of § 518 I BGB, since it is void in Formwidrigkeit, acc. § 125 BGB. The lack of form was not cured by enforcement of the donation, as provided § 518 II BGB. Such was the case of a lying only in the future acquire full ownership of the recipient to accept only if the donor already have done all what is necessary for the subsequent full acquisition of rights, it had but it was missing.

The applicant submits that the appeals court had failed to consider whether the defendant prior to the applicant the right of entitlement have left as gift. This may have happened by the fact that the plaintiff and the defendant earlier had also been agreed that the plaintiff had the vehicle not for the former defendants, but for the financing bank should have. The acquisition of the mortgage costs by the plaintiff did not preclude a gift because the transfer of ownership in this case would not be free of charge, and the transfer of the claim regarding the vehicle because it had Briefs § 952 BGB is not needed. On the relationship between the ownership of the vehicle and the vehicle registration, there are no specific requirements. Therefore § 952 BGB is for these reasons analogy. This means that the law of the letter motor vehicle follows the laws of the vehicle. It is therefore crucial according to a claim for. § 985 BGB, the collateral legal status of the vehicle.

It would have to exist for the claim of § 985 BGB Vindikationslage required. The defendant is undisputed owner of the vehicle registration. The claimant, who is in possession of the vehicle, the claimed right for the vehicle record only when he became owner of the vehicle, acc. § 952 para 2 BGB analog. Whether this is the case, determined in relation to property law principles in accordance. § 929 S. 2 BGB.

Originally, the financing bank at the time of donation declaration of former defendant nor subject the owner of the vehicle. Former defendant was merely an entitlement. This could be the former defendant, however, by mere agreement under § 929 S. 2 BGB on the plaintiff and thus even after the vehicle was already in sole possession of the plaintiff has been transferred. The agreement had

belong here only to the transfer of ownership of the vehicle to the plaintiff, and required as a result of property law Type coercion and any other moments, as adopted by the Court of Appeals erroneously. In a failed agreement on the transfer of ownership within the meaning of § 929 S. 1 BGB is by an interpretation of the declarations of intent under § § 133, 157 BGB However, the agreement on the essentially same minus the property, the right of entitlement. In the event of a settlement under § 929 S. 2 BGB the donation was also performed (as a "gift hand") in the sense of § 516 para 1.

The Court of Appeal had not been determined whether the defendant, as alleged by the claimant, about three months declared after the acquisition of the vehicle to give it to the plaintiff. It is this evidence of witnesses asked to investigate claims have now. The case is therefore acc. § 563 I ZPO remanded to the trial court. If the plaintiff in this case the right of entitlement received from the defendant, it is the plaintiff, erstrarkt by paying the last installment debt to the full law. The plaintiff would thus become the owner of the vehicle. Because, acc. § 952 BGB Similarly, the right to the letter motor vehicle law follows the vehicle, the applicant should also obtain the ownership of the vehicle registration. A right to property, acc. § 986 BGB, the present defendant is not present. The plaintiff would then be entitled to restitution from a § 985 BGB.

The court concludes that from the Declaration, to "give" something that can not be closed without further fact that the parties only to legal liability side of the business had in mind, for the knowledge of the abstraction principle can in not legally qualified parties to be inferred in every case.

Conclusion: The decision of the Supreme Court was processed in a partial section of an examination exam from 19.05.2010 in NRW. However, the claims of the plaintiff, the Exam Exam, directed against the bank. Otherwise were the same legal issues, such as the analogy of § 952 BGB and the transfer of the entitlement by law to treat the completed gift.


Supreme Court Judgement of 19.06.2007 - X ZR 5 / 07

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No contract or other claims arising from the use of services offered over mobile numbers by minors

determine the applicant sought that no contractual or other rights of the defendant J-GmbH against the plaintiff by the use of the services offered by the defendant services consist of the selected mobile number . there The applicant has a legal interest in finding the earliest opportunity, as the defendant against the plaintiff by her with the calculations of T-GmbH for selected mobile phone number in the amount of € 39.39 and € 23.94 in the amount of claims asserted continually famous. The question however is whether the action is justified also. In the present case would the action to be well founded if no claims the defendant made J-GmbH against the applicant.

come in initially considered possible contractual claims. The question is therefore whether the parties are contractual arrangements for the provision of the invoices that the underlying services effectively come about. A contract is addressed, also in the use of modern means of communication such as short message service of a mobile phone, according to general rules and principles of business law doctrine of civil law. A contract is, therefore, acc. S.1 BGB § 151, reached by application and acceptance. This requires first the existence of two matching statements of intent, that of action will, awareness and financial statement will borne human thoughts utterances that are directed at achieving a legal success, here a contract is concluded.

The defendant was here, the outcome of their objective receiver horizon of a statement of intention by the applicant himself. This, however, in the opinion of the court, not the factual existence of these declarations of intent. The objective receiver horizon, acc. § 157 BGB is only when the contract, ie in the context of the interpretation to bear, not even at the question of whether any The will. Rather, an interpretation is in accordance with § 133, 157 BGB, the existence of a declaration of intent ahead fulfill the legal criteria. It can also be left open whether the daughter of the applicant, the statement of intent at all in the name, namely, has made on behalf of her father, acc. § § 164 I 2, 133, 157 BGB. Because the effectiveness of such contracts for and against the plaintiff depends firstly, that the applicant has authorized its subsidiary under § 164 I 1, 165, 167 I BGB. It is far from here, to assume a power of representation of minors. This is important for the effectiveness of the subsidiary agreements concluded by, for and against the father, now, acc. § 177 I BGB, on its approval. This has denied the father against the defendant but on several occasions explicitly. Thus, the previously ineffective pending transactions, shall become void.

questionable, however, is whether the defendant can rely on an apparent authority of the daughter of the plaintiff. An apparent authority exists when the principal action of the apparent agent does not know, but it would have to recognize and prevent dutiful care and was allowed to take the other part, the principal and cheap tolerate the actions of the representative. The apparent authority is based on the setting of a law license and is a legitimate expectation ahead of the other part. Such is not the case here. The defendant could not accept the plaintiff tolerate the actions of its cheap ticket representative. The defendant was of general experience not to trust that only use of legal age, or even just contract with the respective mobile phone provider to the mobile phones. Rather, the defendant went unquestioned for the purposes of private autonomy contract to provide in the position of her person and her age is not known contractor services, their payment, they could not be sure. The private autonomous action using a modern, the processes of the defendant simplistic technology such as short messaging service at the expense of the uncertainties about the age or ability to pay the contractor, can the adoption of legitimate expectations and thus constitutive one for the appearance of authority by the applicant do not seem to set right.

The question remains whether there could estoppel. It requires at least that the person represented, it can be done knowingly, that another appears to him as a representative. This is not the case here. The plaintiff did not by the actions of his daughter. As soon as he learned of it through the first invoice for the services at issue here, rather it is immediately to the contracting process his daughter happened. Therefore no estoppel is concerned.

is questionable whether the defendant in the contractual agreements of the applicant with the T-GmbH, as under a contract with protective effect for third parties pursuant to § § 311 III 1, 241 II BGB, can derive rights. Such third-party effect fails to come to a lack of vulnerability of the defendant as its own contractual rights into consideration. Moreover, in the mobile phone use by third-party users on the basis of civil law transaction doctrine to distinguish rather that the contractor for use in the phone itself directly against the cell phone provider charges incurred einsteht. This has its origin in the pre-existing, and through him direct written contractual agreement with the respective wireless carrier. The claims follow here, not from third party users when placing a call or a text message only contracts. The use of mobile phones under the existing contractual commitment of the contracting party in whose statement. The situation is different at the conclusion of new contractual agreements between two non-parties (ie non-users with third-party),
which the technology of short message service, the latter not verify the exact person and age his contractual partner, the conclusion of contracts make only advantage.

"This gives only a contractual obligation of the contractor of the mobile phone provider's case, not the plaintiff, if it may also make a secondary statement load, where such contracts have been concluded through his mobile phone."

addition could be a claim by the defendant of unjust enrichment acc. § 812 I 1 Alt. 1 BGB be considered. These declines, the court shall, however, because the applicant has not obtained any financial advantage.

question is not whether the defendant is entitled to a tort claim under § 832 BGB I could. Any liability of the applicant as Aufsichtspflichtigem Through its subsidiary, is the Court's view, also not available. This requires at least a tortious act of the daughter. Such is not detectable.

Conclusion: The action was well founded. There are no contractual or other rights of the defendant against the plaintiff, from the use of, the defendant offered, services. The court decision strengthens the protection of minors and their parents at the conclusion of accidental on-line subscriptions and mobile phone subscriptions. There were, however designs, the AG Berlin, concerning the legal nature of such a ring-tone versions "have been desirable. The decision of the AG was the center of Berlin A model of 4/20/2010 Exam exam in NRW. There were the same legal problems. In addition, had to contain the original case was based on the verdict, two modifications are processed.

AG Berlin Judgement of 28.07.2008 - 12 C 52/08

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offenders must be released immediately from the preventive detention

D. The complainant is for over 10 years in preventive detention. He was convicted in 1996, serious charges including attempted trafficking, assault, false imprisonment, sexual assault and promoting prostitution, criminal court. At the same time, preventive detention was ordered. Against the order of the continuation of preventive detention, the complainant has a constitutional complaint collected and simultaneously filed an application for an interim injunction, with the aim to release him immediately. In support of his application, he relied, inter alia, that, since final 10/05/2010, Appeal Judgement of the ECHR of 17.12.2009.

According to § 32 Law on the FCC rules, the Federal Constitutional Court in case of dispute, a state with provisional interim measures, if this is necessary to avert serious harm or from another major reason for the common good urgency. Even in a proceeding on a constitutional complaint, an interim arrangement to be adopted. Here are the reasons that are argued for the unconstitutionality of the challenged public authority, in principle, to be disregarded.

is different only when the constitutional complaint proves to be a priori inadmissible or manifestly unfounded. In an open end of the constitutional complaint procedure must be the Federal Constitutional Court, however, the consequences that would result if an injunction was issued not, the constitutional complaint, but success would have against the disadvantages weigh that would follow if the requested interim measures would be adopted, the constitutional complaint, but the success would fail.

An application for the interim order remains, according to the Federal Constitutional Court, without due consideration of the necessary consequence of success.

fared no proven the interim order, the constitutional complaint, but later founded, the complainant would arise by continued detention of serious and irreparable loss of personal freedom. Personal liberty, acc. Article 2 II 2 Basic Law has, under the constitutionally guaranteed rights of particular importance.

Was the interim measures meadow, but the Constitutional Court, the constitutional complaint as unfounded later, costs would, however, also serious disadvantages. The specialized courts have affirmed the risk that the business for over 10 years in preventive detention located complainant, the 1996 criminal court been convicted was due to his propensity to commit serious crimes will be affected by what his victims emotionally or physically difficult. The specialized courts have so far off to the threat of crime of trafficking for sexual exploitation. This is a reasonable assumption to understand. In view of this, and given the seriousness of the threat of acts of the security interests of the public here outweighs the liberty right of Article 2 II 2 Basic Law of the complainant. The

by that following rejection of the request for referral to the Grand Chamber on 10/05/2010 is now final, Chamber Judgement of the ECHR of 17.12.2009 (Application No. 19359/04) to preventive detention raised legal issues to be clarified in the proceedings.

the retroactive abolition of the maximum period of preventive detention was the view of the ECHR by any condition in Article 5 paragraph 1 a), c), e) ECHR justified reasons mentioned. It would be contrary to Article 5 § 1 ECHR. Moreover, contrary to subsequent preventive detention, even for those who have committed their Anlasstat offenders before the entry into force of the law introducing the subsequent preventive detention on 29.07.2004, I of Article 7 ECHR. After all, they were with the subsequent order of preventive detention more severe than at the time the criminal offense was "punishment" imposed. Preventive detention was understood in this context as an "additional punishment" ("additional punishment"). This, the ECHR had established with their unlimited duration, which develops unique deterrent effect. The court qualified the preventive detention also recognized as one of the most difficult, if not the most severe sanction of the Criminal Code. The Constitutional Court had previously accepted the performing preventive detention no penalty because it had no sanction in character. It was also noted that would implement the new Criminal Code § 67 d III, in accordance with Article 2 in conjunction with Article 20 II GG GG III controlled constitutional legitimate bid because the retroactive abolition of the maximum preventive detention only constitutionally permissible to a spurious reaction leads. By § 67 StGB d III only person affected retroactively, against which a preventive detention has been executed at the time the law was changed already.

Conclusion: With its previously issued decision of 22.12.2009 (2 BvR 2365/09) had the Constitutional Court rejected also submit an application for an interim injunction, which was addressed on an immediate release from prison, with the same effect assessment and justification. The court also decided that the by the Chamber Judgement of the ECHR in relation to the ruling of the Constitutional Court of 05/02/2004 (BvR 2029/01) raised will be to clarify legal issues in the constitutional complaint procedure. The Constitutional Court has so
here again reiterated his line to those who want to resolve by the ruling of the ECHR rights issues arising in the main action. The immediate release of a complainant who is here made to the weighing of consequences, at least not necessary.

BVerfG v. 19.05.2010 - 2 BvR 769/10

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Ryanair may exclude cash, but no additional fees for card payments require

responsible for the civil rights journey Senate today decided on the action of the Federation of Consumer Organizations to the use of terms of payment in terms of an air transport company. The defendant
Ryanair Ltd.. used against consumers following terms and conditions, which stated among other things:

"Because of the increased security and administrative costs will be accepted by Ryanair no cash payments for tickets, the payment of fees and charges for excess luggage and sports equipment ...."

In the fee schedule provided, inter alia, the following fees:
"credit card fee: Per passenger, and single ticket: 4,00 €
payment card fee: Per passenger, and single ticket: 1,50 €"

The applicant feels that these provisions an unfair disadvantage to passengers. The Berlin court, the clause on Exclusion of cash to be invalid, kept the charging scheme to be effective. The Commissioner, on appeal, Court of Appeal has held vice versa.

The plaintiff had argued that the Berlin court dismissed the action wrong, it was the offending clauses (that govern the "exclusion of cash") qualifies an error of law as price agreements, which are, however, particularly because of the provision of § 310 III Number . 3 BGB and because of the typical online distribution channel independently to assess the possibility of a cash payment. Alleged card charges stood, facing opposite to the opinion of the District Court, no special services by the defendant; rather, let the defendant pay their own inherent contractual obligations.

The defendant defended the first-instance verdict of the Berlin court, as far as it dismissed the action. With its cross-appeal to contests this instead of giving part of First Instance, the Berlin court had incorrectly assumed that the defendant do not advertise exclusive distance business, and the complaint by the district court "Exclusion of cash" does not rule out a means of payment, but only one payment. § 362 BGB provides that a debt could be met in various ways.

According to the Court of Appeal is contrary to the opinion of the LG Berlin not, according to a content review. § § 309, 308, 307 BGB, withdrawn, price main agreements. According to the jurisprudence of the Supreme Court limited § 307 III 1 BGB, the content review on terms which differ from or complement legislation. As the parties may determine after the Civil law applicable principle of private autonomy performance and contribution in principle free to subject terms and conditions clauses, the nature and extent of the principal contractual obligation and the price to be paid for directly regulate, not the content control. Control capabilities are against but price-side agreements, ie agreements that do have an indirect impact on price and performance, but in their place, if an effective contractual arrangement is missing, enter dispositive rule of law. Not to control the competitive price-side agreements in addition to the provisions on the price of the contractual consideration include those clauses that govern the consideration for a special benefit is offered separately.

provide contrast, but charging schemes, which yielded not one to transactions based on the customer's special performance in approach, but pass on applications for compliance with the law justified their duty clause user to the customer, represent a departure from law and fall within the scope of § § 309, 308, 307 I, II BGB.

"It depends on whether the clause underlying activities of the user at the client's interests are perceived and related to these activities for the customer any advantages."

In the present case, the contested clauses of the defendant's fee obligations for the payment with credit or debit cards. It is questionable whether those rules govern only pay for the special benefit is offered separately and therefore do not belong to the non-competitive price-control side agreements. Evidenced by the triggers for online booking at the website of the defendant appearing message box in an online plane ticket reservation each selected Payment, particularly of the electronic debit, an additional fee of. The Berlin court was of the opinion that acceptance of payments by credit cards and debit cards at any rate is the fee for the defendant also offered special when cash is accepted as payment would be, because the defendant was in the case of the given option of cash is not required to Credit cards and debit cards to accept additional payment methods. According to the Court of Appeal, however, is not contrary to the opinion of the Berlin court, a real consideration of the defendant for such fees apparent. The advantage cited by the defendant, according it is convenient for the customer to purchase a ticket at a distance, as appropriate to be covered long distances to an airport for a ticket where to buy locally, does not convince the Court of Appeal. With online sales take the form of the defendant's own interests equally true. That customers book their flight tickets online and go not to an airport, where he bought a ticket for a few weeks or months later, the Flight, was almost a typical feature of this form of marketing. That a customer is informed only on the Internet via the online form then, but going to the airport and then buys a ticket would probably be the absolute exception.

"Customers must be available to pay for any additional fee or payment received for the purchase of an Electron card other obligations. They have, apart from the contract atypical purchase tickets at the airport, no way to their contractual obligation to pay the fare comply charge. "

Incurred costs can not be passed on to third parties by law imposed obligations in terms of declared individual services to contractors be. Any charging scheme in terms that are not provided on a commercial basis in law for the individual client main or secondary activity is based, but to shift costs to fulfill their duty trying represents a deviation of legislation and therefore contrary to § 307 II 1 BGB. In addition, the incompatibility of a clause indicated with essential basic principles of the statutory scheme is contrary to good faith and unreasonable disadvantage of the contractor, acc. § 242 BGB. The defendant passed here as a User shall the terms of the costs of its own statutory obligation to accept the return from one side to the customer. Finally, it should be noted that the defendant cash payments not accepted due to rationalization and cashless payment transactions even more so in their own Interest.
The disputed clauses hold a content review was not, because it provided essential basic principles of the law are incompatible, acc. § 307 II 1 BGB. The parties to the defendant to be penalized by the clauses in an inappropriate manner, acc. § 307 I 1 BGB.

question now is whether the cash payment exclusion clause constitutes an unfair disadvantage to the partners of the defendant. The Court of Federal Supreme Court, it is generally permissible to take into account in the design of terms and rationalization considerations and to simplify the contracts and to unify. However, the user may not be one-sided rationalization interest and, and without regard for the interests of his party.

In the present case concerns the "exclusion of cash" by the disputed clause, "the payment of tickets, payment of fees and charges for excess luggage and sports equipment. These services are almost exclusively in the distance. The defendant has already first instance be noted that in the distance would be almost impossible to provide in each case, appropriate facilities and equipment to allow the customer a cash payment. if it were also to bulk business, which is usually in the contract negotiation phase no direct contact between the defendant with the passengers would bring with it. Since the benefits are of cashless payment transactions for the defendant is therefore obvious to assume that that is appropriate from the defendant used cash payment exclusion clause to achieve a significant and economically meaningful rationalization success. These benefits on the part of the defendant are on the side of their customers, compared to in the opinion of the Court of Appeal, any prejudice that would be so remarkable that they would be inadequate for the purposes of § 307 I BGB be assessed.

by the plaintiff at the hearing listed disadvantages, such as a contracting party of the first defendant notice at the airport, his luggage was too heavy and cause an excess baggage fee, or that one party notice on release that did not work for the online booking his card, was not convinced by the Court of Appeal. This should only be exceptions. In addition, to make sure that the non-cash payments now widely distributed and is common, especially if it is not a store.

The Federal Court now has the Judgement of the Court of Appeal confirmed and the revisions of both parties. The

associated with the exclusion of cash disadvantage of passengers is, in the opinion of the Supreme Court, not given to the legitimate interest of the defendant in the most rational operating procedures to be regarded as inappropriate. Here is crucial that the defendant their services almost exclusively at a distance, providing a cash payment and connected to both parties at considerable expense would be.

Conclusion: The challenged charging scheme is incompatible with the basic principles of the statutory scheme, acc. § 307 II 1 BGB. It penalizes also affected customers in an inappropriate manner, acc. § 307 I 1 BGB. One of the essential basic principles of optional law, any law that is what their legal obligations has to attend to, without being able to require users to pay a separate fee. By accepting a payment to the contractor is only his duty to accept a conforming tender of the customer. However, it must give consumers the opportunity to pay the payment on a popular and reasonably accessible way, without the need to be paid to the payee an additional fee.

Supreme Court ruling of 20 May 2010 - Xa ZR 68/09 Bundesgerichtshof
- Communication from the press office 107/2010

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convictions for sedition infringed Article 5 para 1 sentence 1 GG

The first Senate of the Federal Constitutional Court has criminal court in three related procedures for joint decision Convictions for sedition under § 130 II No. 1 b) of the Criminal Code be repealed and remanded the case back to the main court.

The complainants were members of the "Augsburg Alliance - National Opposition". In the period from 03.06. 17/06/2002 led to the association "theme weeks" with, under which the complainant large-scale posters designed and decorated, which were set up at 06.05.2002 in Augsburg, and carried the inscription: "Action: Re-implementing foreigners. Action Week 3 June - 17 June 2002. For a life worth German Augsburg. Augsburg Alliance - National Opposition "The action aliens return. of the "Augsburg Alliance - National Opposition" had been previously announced in the May issue of the magazine "New Swabia. This ten reasons against immigration and for the repatriation were listed.

With Judgement of 20/01/2003 ordered the AG of Augsburg, the complainants for sedition under § 130 II No. 1 b) of the Criminal Code in fines. The complainant had writings which attacked the human dignity of others in that the foreigners living here, insulted and maliciously would contemptuously, posted publicly. Also, the LG Augsburg rejected the appeals of the complainants. This would Writings posted publicly that the human dignity of others attacked the fact that the foreigners living in Augsburg, insulted and maliciously would contemptuously. This is in accordance. § 130 II No. 1 b) of the Criminal Code punishable. This also represents an attack on human dignity by malicious slandering Its content consists of the posters not only from statements that merely expressing emotional rejection. These writings are not from the right to freedom of expression, acc. 5 I GG, covered. The fact that there was no illegality not in relation to the right of freedom of expression. The LG Augsburg also noted that the basic rights of its border find in the general law, and therefore in the Penal Code § 130. An attack of such intensity was not covered more by the freedom of expression. With the text "livable German Augsburg" the complainant had consciously accepted that Augsburg is not worth living, as not "German" is what should be read in conjunction with the previously written word "foreigner-back leadership." Even the Bavarian State Supreme Court rejected the revisions to the complainant as unfounded. The Trial Chamber was correct in law, that by linking the words "foreigner Re-leadership" and "For a life worth German Augsburg "the human dignity of foreigners living in Augsburg is contested. Although it had examined the fundamental right of free expression only with respect to the question of illegality, but the verdict is based not on this. The weight of the fundamental right under Article 5 I GG is in the design of the incriminating statement to take account. Had violated human dignity, is this legal right to freedom of expression not amenable to weighing. The complainants allege

now a violation of the equal fundamental right under Article 3 III GG, their fundamental right to liberty under Article 5 I 1 Basic Law and the fundamental right of equal rights under Article 103 l of the Basic Law by the criminal court Decisions.

The Constitutional Court accepts the constitutional complaint pursuant to § 93a I, II b) Federal Constitutional Court for decision, because this is necessary to enforce the fundamental rights of the complainant is displayed. The question is whether the present constitutional complaint is admissible. The constitutional complaint is considered by the Constitutional Court only partially compatible. As far as the plaintiffs allege a violation of Article 3 and Article III GG 103 I GG, the lack of substantiation does not satisfy constitutional complaints arising under § 23 I 2, § 92 Law on the FCC requirement to state reasons and are not allowed. But otherwise the Constitution complaints on violations of Article 5 I GG allowed.

question now is whether the constitutional complaint is well founded. Here, the standard of review of the court is complied with. The Constitutional Court examines only originary constitution, because it is not super appeal instance. The question is whether it is to make an exception when it comes to the application of ordinary law, in connection with basic communication rights, are concerned. The constitutional complaint would therefore be justified if challenged decisions violate the plaintiffs their fundamental right of freedom of expression under Article 5 I 1 Basic Law.

First, however, would have the protection under Article 5 I GG be opened. Opinions enjoy the protection of freedom of expression without it were up here on the merits, value or accuracy. They lose that protection, not when they are expressed sharp and exaggerated. Thus protected are also right-wing opinions. The statements on the poster "Action foreigners return - for a life worth German Augsburg" fall within the scope of Article 5 I 1 Basic Law. In punishment for this statement is a direct engagement in front of this fundamental right.

The fundamental right of freedom of expression, however, is not guaranteed without reservation. Under Article 5 II GG it finds its limits, including in the provisions of general laws, which include 130 II No. 1 b) of the Criminal Code could. Here is the introduction
BVerfG clear that citizens are entitled in principle to provide basic assessments of the Constitution in question or to request the amendment supporting principles. Continue to run the translated value of the importance of freedom of expression at the level of interpretation is to be taken into account. The preservation of this value-setting significance, it always requires that a balance between freedom of expression and freedom of speech affected by the legal interest takes place (in the narrow sense).
"Freedom of expression must resign but always when the expression of an opinion, the human dignity of another touches. Because human dignity is at the root of all fundamental rights balancing capability with any individual fundamental right. "

However, as not only individual, but all fundamental rights are concretions of human dignity, it always requires careful reasoning, if it should be assumed that the use of a fundamental right to, by proposing to Article 1 I GG, inviolable human dignity. With the concept of human dignity, social claim to respect human is connected, which prohibits the making man a mere object of the State or subject it to treatment that makes its subject quality in principle. Attacks on human dignity in a humiliation, a branding, to persecution or ostracism, and thus exist in all practices, which deny the victim's claim to respect as a person. The Supreme Court is in this context assumes that the mere violation of the honor of a person is not classified as an attack on human dignity. After that rather requires that the challenged person denied their right to live as equal citizens of a State personality and it is treated as being under-valued. The attack must be against their human dignity, therefore making up the core of the personality, not only against individual privacy rights, judge.

As mentioned above, Federal Constitutional Court is the only responsible for auditing the original constitutional law (no Super appeal instance). But it makes an exception in this case. The Court can executes the application of ordinary law of the specialized courts, in connection with the communication fundamental rights, non-negligible impact on the constitutionally protected positions have. Even individual errors of interpretation of the utterance and may in the interpretation of ordinary law lead to an incorrect weighting of the basic law. Given the severe consequences that can draw such errors in the criminal proceedings, at least in a more intensive review by the Constitutional Court is inevitable.

Below reviewed the Federal Constitutional Court, the judgments of the district court, the District Court and of the Bavarian Supreme Court for errors in the interpretation of the utterance or in the interpretation of § 130 II No. 1 b) of the Criminal Code.

meets The ruling of the district court, according to the Federal Constitutional Court, neither the requirements for the interpretation of expressions of opinion nor those on the interpretation of the criminal provision of § 130 II No. 1 b) of the Criminal Code, as the district court in its legal analysis on the fundamental right of Freedom of speech is not addressed at all. So here there is a so-called deficit application of the district court.

The verdict of the District Court is the constitutional requirements for the interpretation of expressions of opinion not fair. It is doubtful whether the district court of the fundamental right of freedom of expression has recognized as independent to be considered standard of interpretation. The reasons for the decision can not recognize that the district court, designed by the complainants as a poster paper has considered the public opinion battle and that it has the constitutionally-approved for the following demands on the interpretation of opinions. From the testimony of the District Court that the conduct of the complainant is not covered by the basic right of freedom of expression, the result only a flat fee without properly considered reasons that the behavior as either already not the protection of the fundamental right includes viewing is, or that the fundamental right of Article 5 I GG in conflict with other constitutional goods have been found to be subordinated. The thing to deny it to another account of the needs of Article 5 I GG for further interpretation and application of § 130 of the Penal Code and fails to recognize that the constitutional requirements for the application of restrictive laws have already basically opinion. So here is a deficit before the application of the District Court.

The decision of the Bavarian Supreme Court, meets the requirements of Article 5 § 1 does not GG. It has, however, the introduction of its reasoning, stressing the constitutional standards for the interpretation of expressions of opinion and also recognized that an affirmative answer to an attack can not be more on the human dignity concerns of freedom of expression considered or weighed in the proportionality. However, it has mentioned the Federal Constitutional Court developed principles for the interpretation of the penal provisions restricting freedom of expression, which in fact require a violation of human dignity, "the not yet considered the matter after. The criminal courts but must indicate the interest of substantive protection of fundamental rights by disclosing the relevant reasons for the outcome of the assessment in an accessible way of constitutional review, that in the consideration of the for the relevant circumstances have been set, or why there was no room for a balance in individual cases for reasons such as a curtailment of human dignity. The Bavarian State Supreme Court had, however satisfied in a single sentence noting that an attack are present on human dignity, not substantiated in more detail then. The strict requirements of the Federal Constitutional Court, in a particularly careful examination of the human dignity of injury, is not enough that. So all the contested decisions are based on the fundamental right of each identified violation.

The constitutional complaints are (partly) admissibility and the merits and thus have success. Decisions are repealed. The case is remanded to the AG of Augsburg and the Free State of Bavaria has to reimburse the complainants for the necessary expenses.

Conclusion: Since in the present decision to the individual application of the penal provision is, problematizes the Constitutional Court not to § 130 of the Criminal Code as a general law not with 5 I and II of the Basic Law is compatible. Since a criminal offense may violate the freedom of expression under Article 5 of the Basic Law, must make the relevant specialized court a detailed case examination.

BVerfG v. 04.02.2010 - 1 BvR 369/04

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justification requirements for immediate termination of tenancy of a residential area

The Federal Court in this case a decision to support the requirements for immediate termination made about late payment of an apartment tenant in a case where the delay in payment was accrued over several years with varying monthly amounts.

The lender has the defendants, their tenants, made to a vacation apartment in Leipzig in stock, acc. § 546 I BGB. The tenants had paid most of 2004 from March through October 2007, only one impaired rent. After the landlord, who did not accept the reductions in the amount claimed, had asked in March 2007 to pay a rent arrears of € 5,023.80, she announced the lease by letter of 21.05.2007 due to delayed payments without notice, acc. § 543 I, II No 3 b) BGB. Here, she listed for the period May 2004 to April 2007, the existing in their view, residues in relation to the basic rent and the advance payments on each monthly basis, calculated for the base rent an overall deficit of € 5,303.27 and the advance payments of € 2,038.80 and gave this as the termination without notice leading cause.

The AG Leipzig has the right to terminate, acc. § 543 I, II, No. 3 b) Civil Code for breach of that obligation of § 569 IV BGB held to be invalid and dismissed the eviction action brought by the landlord. According to § 569 BGB IV is the major reason leading to termination in the Termination notice shall specify the information to ensure the landlord, are not sufficient in this case. Leipzig is in contrast to the court reached the conclusion that the lease of the dismissal 21st May was, he was terminated in 2007, and has condemned the tenant to eviction.

directed against the revision of the tenants had no success. The Eighth Civil Division of the Supreme Court has held that the dismissal is of 21.05.2007 the justification requirements of § 569 IV BGB fair and therefore not ineffective. Purpose of the provision is to allow the tenant's knowledge, on which operations or conduct of the landlord that the dismissal is based and whether or how to defend themselves. From this end, the Supreme Court for simple situations has previously held that it is sufficient if the landlord gives the default of payment as grounds for dismissal and estimated the total amount of arrears of rent.

This law has now developed the Federal Court for further situations in which the landlord, as in the case decided, the termination is based on previous residues. In such cases it is sufficient for the formal validity of the termination, the tenant can be seen from the grounds of the termination letter, which comes from rent arrears, the landlord, to verify independently using this information, the termination of their validity can. These requirements are satisfied in the case decided dismissal of 21.05.2007 justice.

Conclusion: A landlord do if he wants to terminate the tenant for late payment, make sure that the residue giving rise to the termination set out transparent. The tenant must be able to check the present decision of the Supreme Court, the reason for dismissal. However, a tenant who receives a dismissal due to rent arrears should examine whether the notice meets the requirements of § 569 IV BGB. Otherwise, they are ineffective with the result that the lease is not terminated.

Supreme Court ruling of 12th May 2010 - VIII ZR 96/09 Bundesgerichtshof
- Communication from the press office 102/2010

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No copyright infringement by Google Image Search

Google can not be used for copyright infringement claim when copyrighted works are reproduced in previews of their search engine. This was decided by the committee responsible for copyright First Civil Division of the Federal Court.

The internet search engine Google has a text-driven search function with which you can search using keywords for pictures. The images are found by the search engine in the hit list as reduced and their number of pixels compared to the item held on the original pages of illustrations reduced thumbnails shown, called thumbnails. The preview images contain links that you can go to the website that contains the figure. To shorten the search, does Google crawl the web at regular intervals after pictures and holds them as thumbnail images on its servers before, so that short time are displayed after entering a search word, the hit list with the corresponding thumbnails.

The applicant is a visual artist and runs his own website, are set to the images of their artworks. In February 2005, when you type its name as a search term into the search engine Google pictures of their art displayed as thumbnails. The applicant has taken the view that reductions of the display of images they have set on their website infringes their copyrights. The applicant would indeed that their home would be found, but that their art will be displayed as a thumbnail. It has now according omission. I § 97 Copyright Act, removal and admission of liability for damages, acc. II § 97 Copyright Act, Google Inc. asked the defendant.

The defendant argued then that would be violated by displaying thumbnails of any rights of the applicant. There had been an implied consent of the applicant been that they have set their images freely available on the Internet. The simplest measure possible, their website by including appropriate commands to be programmed so that the "crawler" search engine would not have access to over take the set contents, the applicant had not made.

The lower courts dismissed the injunction directed to the applicant. The LG Erfurt argued that implied consent is to be assumed by the applicant. According to the Higher Regional Court Jena, as an appellate court, the defendant Google Inc. has indeed violated the copyrights of the applicant illegally, since the reproduction of copyrighted Images as thumbnails in the context of search engine results, the editing right in § 23 UrhG injured. The assertion of a claim for injunctive relief against the use of thumbnails, however, is an abuse under § 242 BGB, when the source code of web page meta elements in the context of search engine optimization function used and maintained.

The Supreme Court has rejected the review of the applicant. He believed that the defendant has not committed any illegal copyright infringement. The
by the applicant, the Internet set, even painted pictures are protectable works of fine art in the sense of § 2 I No. 4 Copyright Act. It was in the opinion of the OLG Jena, as an appellate court an unlawful infringement of this, by the Copyright Act safeguarded, protection. The defendant attacks by displaying a so recycling of these thumbnails to the right reserved to the copyright under § 23 Copyright Act, because of the defendant created and are in the hit list of the search engine displayed thumbnail derivative works within the meaning of § 23 UrhG.
An unlawful exclusionary consent by the applicant is not present here. It therefore apply the general principles of the transaction, taking into account the particularities of the teaching purpose urheerrechtlichen transmission teaching.

has expressly granted the defendant the applicant here is no corresponding right to use, as an explicit declaration of consent is missing. There is no implied consent given by the applicant before by setting their pictures.

Implied declaration of intention is always present when a will is not directly in the statement finds expression, but because of external circumstances, be concluded, therefore, indirectly on the legal business will be. Basically, just to make the adoption of consent to fulfill the legal criteria this copyright infringement strict requirements. This corresponds to the transfer doctrine in copyright law recognized purpose. This rule of interpretation is expressed that the copyright powers have a tendency, as far as possible to remain with the author, so this is part of the proceeds of his work in an appropriate manner. By adjusting their images for free viewing and without technological protection measures to the Internet, the applicant no implied consent on a view to granting right of use for the transformation of their pictures for thumbnails by a search engine within the meaning of § 23 of the Copyright Act has made. This would contradict original authors' interests, since the author who wants to enjoy a work permit, in principle, does not agree that acts to be performed beyond the unimpeded work delight. The Higher Regional Court Jena was thus to the conclusion that not everyone that is a screen for free and without the view offered by the defendant blocking action adjusts to the Internet, implicitly agrees that his work is used for the purposes of § 23 UrhG I through a search engine. For an implied consent of the applicant were missing, in this case, sufficient evidence.

In this case, the applicant does, however, according to the Higher Regional Court Jena, no injunctive relief, acc. I § 97 UrhG, too. This follows from the fact that the applicant is a "search engine optimization" has made in the form that the search engine access is easier on their side, the "crawler" to the Search engines are attracted to, so to speak. In such a situation is the argument based on a lack of consent to the use of their images through search engines is improper and in bad faith within the meaning of § 242 BGB (venire contra factum proprium).

The court approved the finding of the appellate court that the applicant did not grant any express or implied legal declaration Google the right to use their works as a preview image, too. Furthermore, it is found that adjusting the images on your website, express or implied grant of a right of use pursuant to § 19 a UrhG for preview images Google it. Copyright infringement would be to affirm it. In playing in previews lying intervention in the applicant's right of § 19 a UrhG is, but not unlawful because the defendant was the conduct of the applicant, could see even without a legal declaration, they agreed with the display of their works. The Supreme Court adopted the well that already there was no copyright infringement by the defendant. While Google, the artist has no right to use of their work acknowledged as previews, but since they've optimized the content of its website for access by search engines, have to assume Google, this was in agreement with the display of their works.

Conclusion: From the press release is not clear whether the Supreme Court also helped avoid § 242 BGB and the right acc. § 97 UrhG I classify as abuse of rights, or whether he will accept in advance any copyright infringement by Google.
The court refers to the end of the release nor to cases in which the displayed images have been suspended in non-authorized persons in the Internet. Search engines are following the recent Court of Justice of the European Union under certain conditions to qualify for its services, the limitations of liability for providers of information society services in accordance with Directive 2000/31/EC on electronic Business to take advantage. Thereafter, a liability of the search engine company would only be considered if he had notice of the illegality of his stored knowledge information. This means of course that the respective copyright holder must make a report to Google if it is not a publication in the image search wishes.

Supreme Court ruling of 29th April 2010 - I ZR 69/08 Bundesgerichtshof
- Communication from the Press Office 93/2010

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liability for inadequately secured wireless connection

individuals can an injunction, acc. I § 97 Copyright Act, be eligible if you are not sufficiently secure Wi-Fi connection from unauthorized third parties for copyright infringement is used on the web. However, no claims relating to a claim for compensation, acc. II § 97 Copyright Act, be made. This is now the First Civil Division of the Federal Court decision.

The applicant owns the rights to the song "summer of our lives." With the aid of the prosecution was determined that this title from the Internet from the defendant, had been on a sharing network to download, available on the Internet. The defendant was in the period in question but on a vacation trip. Prior to arrival he had all the technical equipment, including its complete PC systems and also the wireless router off. The applicant seeks injunctive now the defendant, damages and the reimbursement of Abmahnkosten.

The LG Frankfurt has the defendant in the first instance, convicted in the application. The Frankfurt Higher Regional Court dismissed the action. The Court of Appeal had

found it liable to the owner of an Internet connection generally not as spoilers for the unauthorized use of a wireless connection by unauthorized third parties who are not affiliated with him.

The Federal Court of Appeal overturned the verdict, as far as the Frankfurt Court of Appeal had dismissed the application with the application for an injunction and the request for payment of Abmahnkosten. The Federal Court but also believed that the liability of the defendant as the perpetrator or participant in a copyright infringement not be considered. According to § 97 I

Copyright Act, a person who violates the copyrights illegally will be taken in re-offending for an injunction to complete. The claim for injunctive relief exists, even if an infringement is threatening the first time. In the present case the defendant is the violation of copyrights, acc. I § 97 Copyright Act, adequate cause causal. And private port owners responsible for the opinion of the Supreme Court a duty to consider whether their wireless connection is protected by adequate safeguards against the risk of being hit by an unauthorized third party misused to commit copyright infringement. The private operator of a wireless network should not be expected to network security continuously adapt the latest technology and spend it with adequate funding. Their audit requirement refers to the observance of, at the time of installation of the router for the private sector, market fuses. So it would have been reasonable for the defendant to prevent the violation of this duty, the defendant, in the opinion of the Supreme Court, violated in this case. He had left at the factory default security settings of the wireless router and replace the password by not a personal, long enough and safe.

So here is an injunctive relief under § 97 I 1 UrhG. In addition, there is also, according to § 97 a I 2 Copyright Act, a claim for compensation the Abmahnkosten. The Supreme Court makes it clear to the fact that a defendant is liable under the legal principles of the so-called nuisance liability, for restraint and for reimbursement of Abmahnkosten. The liability is the opinion of the Supreme Court after the first, to the wireless terminal of the defendant committed copyright infringement.

liable for damages under § 97 Copyright Act II, however, only those who violated a foreign copyright or related right. But the offense has as perpetrators themselves committed or taken part be causally adequate (instigator / assistant). The Supreme Court makes it clear that the defendant not to pay damages, acc. II UrhG § 97 is required. A liability as the perpetrator of an infringement of copyright is denied because the defendant does not question the songs on the Internet. A liability as an accomplice in the foreign copyright infringement would have required intent, where it was lacking in the dispute.

Conclusion: The Federal Supreme Court clarified that Abgemahnt at inadequately secured wireless internet access for injunction, but can not be made to a claim for compensation. The repayment of Abmahnkosten here was limited to 100 €. acc. § 97 a UrhG. The Court of the Supreme Court Abmahnkosten are thus now 100 € "capped". This cap is designed to ensure that no undue hardship.

Supreme Court ruling of 12th May 2010 - I ZR 121/08 - our summer Life
Federal Court - Statement of Press Office No. 101/2010

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water over water

Good morning,

if we do not again have power or Internet failure, I create it, here again to write a post.

showered for days both here and down with rain. At the moment, even a short break, so also is the Internet. I've never seen so many rains and experienced as at the time. This is due to a cyclone that passes probably just on the sea and we noticed the side extensions of it. Roads are completely blocked and partially flooded. In knee-deep water to run here sometimes people and sometimes it is really scary what so everything is swimming in the water. As the rains are so strong, can not flow properly. When it stops a little bit then the water flows from a short time to the new water masses was back to hold. Many

People do live here really very poor in wooden huts. Yesterday I saw pictures that I've really almost have to cry. The wooden huts are partially submerged totally and mothers want their young children in her arms in front of the huts. There are really bad pictures that you see there.

Since it seems almost a little arrogant, if Simon can go with us on the roof also flooded, paper boats. The pictures are from Monday.





Sun and more violent sees our garden at present. Actually, there's a tiny, tranquil pond, but this is now one with the garden.





Otherwise, we are fully occupied with packing. In 2 weeks is our container to bring our stuff here.



So now I hope that stops the rain a bit and the cyclone is over soon.

love greetings from
Yvette

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aid to Greece - constitutional complaint against the monetary policy of the Federal Republic of Germany

with their request for a temporary injunction sought by the complainants that the Federal Republic of Germany is forbidden to grant to stabilize the European currency area grants to the Hellenic Republic.

The Hellenic Republic has since 2001 a member of the group of 16 of the 27 EU member states whose common currency is the euro (EMU). The information on the size of the Greek budget deficit was revised in 2009 from 5% to almost 13% of the gross domestic product. For 2010, an increase of public debt to 125% of the gross domestic product, more than twice the permissible value of 60%, calculated. The European Council met on 11.02.2010 in Brussels in the interests of stability of the euro on possible action in regard to Greece, to advise. After great turmoil in financial markets, the EU declared its readiness to assist Greece in addition to financing from the International Monetary Fund (IMF) with their own bilateral loans. After the rating for Greece on 09.04.2010 was downgraded to BBB and the risk premiums on Greek government bonds rose to record levels and this has led the finance ministers of EU states to force an agreement on determine the structure of bilateral loans, and by their size and their interest rate. On 23.04.2010 requested the Hellenic Republic and EU financial support of the IMF. The three-year funding program of the IMF has an estimated total of 110 billion € in the form of coordinated bilateral loans. Up to 30 billion euros in the first year. The proportion of each State to the loans measured at the respective contributions of the States of the euro area the ECB's capital. (Except Greece)
The share of the Federal Republic of Germany in the 15 states of the euro group is 27.92%. Thus, the share is the lending of 22.4 billion euros (8.4 billion in first Year). To take the necessary measures at the federal level, the German Bundestag adopted on 07.05.2010 the impugned Monetary Union Financial Stability Act (WFStG). The WFStG was adopted by the Bundestag at 12:00 of 07.05.2010. The Federal Council approved at 14:30. After signing and execution by the President, the WFStG was announced on the same day in the Federal Gazette.

Even before the approval of the Bundesrat, the complainants have lodged a constitutional complaint against the WFStG and simultaneously requested, the President of the enactment of the law and the federal government prohibit the execution of the law for the time being. claim on the constitutional complaint the complainant to establish that the WFStG them their fundamental rights (fundamental rights and equal rights) under Article 38 I, 14 violated Article I and 2 I GG. The Federal Republic violated the complainant specifically by the agreement and the granting of financial assistance to the Hellenic Republic. In addition, request the complainant noted that the agreements of the EU which have been denied aid to the Hellenic Republic, including Germany, declared their basic rights and fundamental rights, equal rights violated.

The merits of the application for an interim arrangement to bring the complainant following. The violation of fundamental rights of their basic equal rights and Rights could only be averted if Germany do not contribute through financial ability to pay of the Hellenic Republic. If a decision is awaited on the merits, there is a risk that can be done at Greece financing irreversible. In addition, through the financial support to Greece a fait accompli, up to which other Member States of the euro group, whose solvency is also doubtful.

The Constitutional Court considers that the request below is well founded. In examining the interim measures which have reasons for the unconstitutionality of the challenged act of the public Violent talk, be disregarded, unless the coveted mainly finding it transpired from the start as inadmissible or unfounded. In this case the application for the much sought after because of the arrangement due weighing of consequences is unsuccessful. This is despite also the question of whether the application in view of the fact that before the announcement was made by the constitutional complaint challenged the law, could be illegal. Open questions of the admissibility and merits of the constitutional complaint the Constitutional Court in this case can also be disregarded.
Of everyone would threaten serious harm, shall be taken if the arrangement and would be taking over the Warranties would turn out as constitutionally permissible.

"The Federal Republic of Germany would have to abort in the case of the adoption of the much sought interlocutory their assistance to the emergency measures to maintain the solvency of the Hellenic Republic just when it is required. This would disappoint not only by past behavior fostered expectations of partners in the euro area. "

was also the feasibility of the whole rescue package at risk. This results, according to the federal government great harm to the public. If the goal pursued by the WFStG be missed, so should the likelihood of insolvency Greece can not be avoided, would be the stability of the entire monetary union at risk. Also available are not sufficient evidence that force one to believe that monetary and fiscal policy assessment of the federal government has failed. could arise

The disadvantages if the interim relief were not granted, so weigh less heavily. A significant injury is caused in the public interest not from the possibility of using the federal case in the entrance. The potential liability is by reducing the current risks outweighed the federal budget, resulting from the financial instability in the European Monetary union could result. The applicants have also submitted no evidence that, in particular their right under Article 14 I GG could be directly affected as a result of hard just guaranteed lending.

BVerfG Dec. v. 07.05.2010 - 2 BvR 987/10

Snow Chains Odyssey 2007

reading "GroundXiro"










information here: http://www.galeriestudio38.at/1910 # xi

Good Place To Buy A Desk

I'm watching you! - My Elevator and the landlord

exhausted when I finally, a little because of what ever came home, I did not look bad, when the elevator doors opened.

To us no doubt, sometimes to send a message somewhat unreliable foreign students, is the bulletin board next to the elevator just pointless, for there looks not ran. Also, messages - Celebrations, property loss and requests - simply pinned into the elevator. It can thus never what one expects when the doors open. Sometimes comes out a nice person, sometimes a few nice-looking three (was probably just a test Spanking in the university) or you can simply read about the next party (usually it is extremely boring blank).

But this time it was something different. There was a notice there (is nothing new). Since I have the fourth floor, I ever have enough time remained for reading.

Click to enlarge this picture

Our worthy steward Hongo-san is well written.
Quote:
"Please bring the vacuum cleaner after use in the closet."
In the eyes: "We know who you are!" (In Japanese, we will search every room)

signature: "Hongo Intelligence Agency

As always Hongo-san, who always looks a bit grumpy, but in truth is very dear, who enjoys making a dry joke times (which one must first understand), got the idea is beyond me. Although ... yes actually you can expect everything ^. ~

Ready Coleslaw Dressing

Rented !!!!!!!!

It worked, it worked! Folks, I'm so glad.

Our dream house is rented. Our new home is the beginning of July between Cloppenburg, Oldenburg. The house offers beautiful rooms for our children, we have room for all of our creative desires I have a ....... extra sewing studio in the attic, my husband, a garage and the basement offers 7 rooms with enough space to accommodate all ideas. The garden is beautiful and great and now I must get me reading to the garden pond, as the garden has a pond. Does anyone have a good Book Recommendation for me where it is not just about creating a pond, but rather the care.

Ohhhh, I am sooooooo much. Finally fall and colorful falling leaves and Halloween. Finally gentle fog in November, not 32 degrees at Christmas, do at last start of spring and the change of nature.

The lease should now be already signed.

I look forward to then pictures like this ...



...... and this



........ and this



Is there anyone in this corner of Oldenburg, Cloppenburg , and educate themselves.

Kind regards Yvette

Cards Interactive Christmas 2010

not dead!

Neiiiiin, I'm not dead yet! I'm just less often (friends already know why) at home and the university has started again.

Today was not the first warm day of the year, but the first day when I was in Japan on the beach. Nami invited me and some friends that I know well, and we are first in the N: he of Chiba (east of Tokyo) driven to go to the beach.
Unfortunately no one has said that the road from the beach Bahnhpf amounts to about an hour run. Udn I wore my new shoes which resulted in bubbles .. Well, I have to carry me to the cinema tomorrow oedr run barefoot. Urgs through Shinjuku, na toll ...

The weather was extraordinary good I rolled up my pants udn hastily, while Nami their stuff ripped from the body in a bikini and showed great interest, umligenden Japanese, otherwise get to see rather less bikini women outside the magazines.

Anyway, was caught in a water ball and with Phil and Nami's friend into the water to play. Of course, after I smeared with a sun protection factor of 50. After that I was wet enough for the Tagme, because I had no bikini here, but my pants rolled up. Oops. dry but with the great summer weather again until evening.

After an afternoon in the sun with much Gespraechsstof, went back - unfortunately - with the promise: We'll do it again!
U.sub.ind it is clear that we will go there again, but maybe d iesmal to my dorm around, in Kanagawa, west of Tokyo - exactly the opposite direction. Martina udn I check the times from Wednesday.

Jezter I bn freshly showered and in half Bottle of wine (Nami drank the other half, so to speak later at an Gebrutstagswein, we have not killed before NEM month) intus on the PC and write with a slight sunburn on the face and around the neck this blog and I feel just great. What you need more than a birthday wine, a day at the beach and a small water fight? ^ _ ^

Leather Tape To Repair Couch

reading Heinz R. Unger + Beatrix Neundlinger & The marginal employment

Am 28.04. was in the main library reading by Heinz R. Unger, and a concert by Beatrix Neundlinger & the marginally employed.
Ungers things I would describe as a utility poetry. Sometimes quite funny, sometimes banal. Often there are more aphorisms than poems.
The really positive surprise, Beatrix Neundlinger & the marginally employed. The butterflies are musicians now in! There we are screaming not only a message to the world, no, the scoring is great - more voices and such. Beatrix Neundlinger anyway awesome!
The lyrics (the pants) were also much better than the read poetry!