Warning

A warning is a formal request to refrain from a certain action or behavior. In principle, warnings can be used for every area of civil law injunctive relief and in every contractual continuing obligation. The warning is of particular importance in commercial legal protection , in particular in competition law , copyright law and trademark law .

In competition law, 90 to 95 percent of all violations are already dealt with in the warning procedure, i.e. out of court. Originally, the warning was understood as a management without an order , in some cases it was also seen as an instrument under common law. In the meantime, the warning, for example in the German § 12 UWG , is also regulated by law.

Situation in Germany

Commercial legal protection and copyright

function

The warning has the function of settling disputes directly without involving a court. From the point of view of the injured party, it is necessary in order to counter the risk that the opposing side will immediately recognize their duty to cease and desist in legal proceedings. In such a case, the injured party would have to bear the procedural costs incurred up to that point if the opposing side did not otherwise give cause to pursue legal proceedings.

The admissibility of warnings in the event of violations of the GDPR is controversial. The Bochum district court denies the possibility of issuing a warning against violations of data protection law (Az. 12 O 85/18), whereas the Würzburg district court assumes a warning can be issued (Az. 11 O 1741/18). The Hamburg Higher Regional Court (Az. 3 U 66/17 I), on the other hand, takes a mediating view and affirms the ability to issue a warning against GDPR violations, insofar as it is in accordance with According to § 3a UWG, the respective GDPR standard deals with a "market behavior regulation".

Formal requirements

The warning in commercial legal protection and copyright must contain a description of the matter in question, an associated reference to a legal violation, a request to cease and desist within a reasonable period and the threat of legal action. Usually, the warning is accompanied by a pre-formulated cease and desist declaration . Until recently, it was controversial whether the warning issued by a legal representative had to be accompanied by a power of attorney for it to be effective. As far as the warning - as in almost all cases - is designed as an offer to conclude an injunction contract, the Federal Court of Justice has decided this question in the meantime. Accordingly, in these cases no attached power of attorney is required for the warning to be effective, since the provision of Section 174 of the German Civil Code (BGB) does not apply to these cases. The warning is of particular importance when taking action against unfair competition .

In 2009, the Hamburg Regional Court confirmed the legal validity of a warning by email, even if the email was deleted by a spam filter.

reaction

A warning can be countered with various reaction options:

Justified or partially justified warning: declaration of cease and desist.
- A pre-formulated text is signed with a declaration of cease and desist with penalties, which is regularly attached to a warning, so that the stipulated contractual penalty must be paid if the action concerned is repeated. The person entitled to receive a warning must also bear the costs of the warning. In the required amount, however, only insofar as the specified object values and, on this basis, the calculation of the lawyer's fees are correct. The submission of the unchanged declaration of cease and desist only makes sense if the warned facts are undisputed, the cease and desist obligation is to be recognized as such and precisely in the pre-formulated scope and the amount of the proposed contractual penalty appears appropriate.
- Submitting a modified cease and desist declaration and assuming the costs on the basis of a lower value in dispute (object value ) are recommended, for example, if the object values estimated by the opposing side are unrealistically high. The person giving the warning must sue for unrecognized costs. It should also be examined whether the wording of the cease and desist declaration goes further than the legal obligation. Caution is advised: If the person warned is only prepared to make a declaration of cease and desist that falls short of his legal obligations, the person giving the warning can pursue legal proceedings immediately and at no cost risk .

By negotiating with the other side one can comparison be sought. Here, too, what was last said about the modified cease and desist declaration applies.

Unauthorized warning:

If you are absolutely sure, you simply cannot do anything and let it come down to legal proceedings. This is particularly dangerous if, for example, an injunction would seriously disrupt one's own business operations . This would have to be strictly followed and could only be eliminated through a process, usually after several weeks.
With the negative declaratory action , your own claims can be defended by making it clear that the injunction of the warning party does not exist.
Alternatively, a counter warning can be set up in which the omission of further warnings is requested. If necessary, claims for damages can also be asserted.

The warned person can also react by depositing a protective letter with the court likely to be approached by the warning person. As a result, an injunction will not be issued without the court having taken note of its position. However, it is conceivable that an interim injunction will still be issued if the arguments in the protective letter are not convincing.

Making these (and other) decisions requires experience and in-depth legal knowledge. Legal laypersons are usually advised to consult a lawyer or other person authorized to provide legal advice in this area.

costs

Usual scheme

Since the warning is usually issued by a lawyer on behalf of the injured party, the warning itself results in legal fees. The exact fees for legal work are calculated in accordance with the Lawyers' Remuneration Act (RVG). If the warning is justified or if the person being warned accepts it without further ado and if further formal requirements according to § 97a Paragraph 2 UrhG are met, the injured party can demand reimbursement of the legal fees. For copyright matters, this results from Section 97a (3 ) sentence 2 UrhG , for warnings due to unfair business transactions from Section 12 (1) sentence 2 UWG. The dispute as to whether there is a claim for reimbursement from the reimbursement of expenses by the management without an order, Section 683 Sentence 1, Section 670 BGB, has thus become superfluous.

In the case of a warning regarding copyright, trademark and competition law matters, they are determined by the amount in dispute, combined with a value factor according to the scope of the activity. The fee disputed value in the commercial sector is usually set at amounts of 10,000 euros or more. For an average trademark infringement , the value in dispute is, for example, regularly 50,000 euros. The fee reimbursement for the attorney who issued the warning can then be in the order of considerably more than 1000 euros. In the opinion of the BGH, they are to be reimbursed in principle even if a company has its own legal department and external lawyers commissioned with the warning.

In patent , utility model , trademark , semiconductor protection law and plant variety protection disputes , the costs of a participating patent attorney must also be reimbursed in the same amount. They are also to be reimbursed if the letter is sent several times.

In addition to the costs for the lawyer to act, there is usually compensation for the violated right. In many cases of intellectual property , this is calculated in the form of the license analogy.

Upper limit in copyright for consumers who have not already been warned

The high monetary demands in connection with warnings repeatedly call on critics who, in an effort to curb copyright infringements, saw many lawyers looking for quick money. In order to prevent this risk, the amount has been limited since 2008. Section 97a (3) UrhG, which came into force on October 9, 2013, stipulates that (justified) warned natural persons may only be charged legal fees in the amount of the fee for an object value of 1000 euros , which " objects of protection not for their commercial or independent professional activity" use and "are not already obliged to cease and desist due to a claim by the person issuing the warning, due to a legally binding court decision or an injunction". However, this amount does not affect any further claims for damages by the injured party. The regulation is limited to copyright. It does not make any statement as to the extent to which the lawyer has a claim against the injured person mandating him.

Special features on the Internet

The request on a homepage to send an informal e-mail or call instead of sending a formal warning in the event of legal concerns (for example, information in the imprint or trademark infringement ) is not legally binding, especially since the e-mail or the phone call can represent a warning. The aim of such a request is not to be charged with the costs of a legal warning. However, these costs arise primarily from the examination of the factual and legal situation and less from the written warning letter. The interferer cannot unilaterally withdraw from this.

According to established jurisprudence, only a declaration of cease and desist with criminal penalties - as it is usually enclosed with a warning letter - can eliminate the risk of repetition and thus avoid a process. The injured party can also apply for an injunction immediately, which can bring him an enforceable title . Without a prior warning, however, he has to bear the costs according to § 93 ZPO if the infringer immediately recognizes his obligation to cease and desist, provided that it was to be expected that the interferer would issue a cease and desist declaration based on a warning.

If, on the other hand, the violation of the law is not stopped in response to the warning - usually by submitting a declaration of cease and desist with penalties that excludes the risk of repetition - then the person warned has given cause to bring the action and must pay the court costs, even if he immediately acknowledges the process.

copyright

In the last few years there has been a sharp increase in warnings, particularly in the case of copyright infringements . The focus is on the use of copyrighted material on websites - e.g. B. city map excerpts or images - and making them accessible in file sharing networks.

The Association of the German Internet Industry announced in a press release on May 31, 2011 that German Internet providers provide around 300,000 address information about subscribers a month on the basis of Section 101 (9) and (2) UrhG. The "Interest Group Against the Abmahnwahn" has been running annual statistics on the warning system for years, which deals with so-called file-sharing warnings. The latest edition of these statistics covers the year 2014. The 2014 annual statistics show a total volume of approx. 74,000 file sharing warnings. According to the 2010 annual statistics, around 600,000 file-sharing warnings worth around 500 million euros were sent in 2010. The decrease in the number of warnings is probably due to the introduction of the law against dubious business practices , which has made sending file-sharing warnings less attractive financially. So far in Germany allegedly six percent, i.e. around 4.3 million Internet users, have been warned at least once.

The law against dubious business practices limits the amount in dispute to 1,000 euros and thus the legal fees to 124 euros, unless this amount in dispute would be “unreasonable in the particular circumstances of the individual case”. Consumer advocates complain, however, that lawyers would exploit this clause as a loophole in the law by arguing that the worldwide availability of the works on the Internet already results in inequity.

The Federal Court of Justice (BGH) ruled on May 12, 2010 (I ZR 121/08, Summer of our Life ) that a private subscriber whose WLAN connection is improperly used by a third party, according to the legal principles of so-called interference liability is liable for omission and for reimbursement of the warning costs, but liability as a perpetrator or participant in a copyright infringement is not possible. Accordingly, the costs of a warning must be reimbursed by the interferer, but not further compensation such as lost license fees.

The BGH also ruled on November 15, 2012 (I ZR 74/12) that parents are generally not liable for the illegal file sharing of a 13-year-old child if they have instructed the child about the prohibition of illegal participation in Internet exchange sites and had no evidence that their child was violating this prohibition.

On June 11, 2015, the BGH decided on three proceedings (file numbers I ZR 19/14, I ZR 7/14 and I ZR 75/14) on file sharing matters. In the case of the Az .: I ZR 19/14 the question was to what extent the determination of an IP address in a swap exchange has evidential value. In the opinion of the BGH, it is sufficient for the investigation process to be precisely logged by an employee of the monitoring investigation company and for screenshots to be made of the investigation process. A blanket contest of the results of the investigation without a specific presentation of the facts on the respective individual case is then not sufficient to shake the evidential value. In the proceedings relating to Az .: I ZR 7/14, the BGH once again made it clear that parents must fundamentally prevent their children from committing legal violations. According to this, it is necessary that parents expressly forbid their children to participate in swap exchanges and instruct them accordingly in a preventive manner, whereby regular, unprovoked monitoring or instruction is not required. If the requirements are met and the underage child still commits a violation of the law, the parents are not liable. Finally, the BGH expressed itself in the proceedings relating to the case number: I ZR 75/14 on the secondary burden of proof. A subscriber is sufficient for this, provided that he can submit that other people besides him had independent access to the Internet from this connection. It must appear that the copyright infringement could also have been committed by one of the other connection users.

Court strength

From a technical point of view, today it is often impossible for outsiders to locate and analyze two-point connections such as an upload download within the framework of ordinary Internet TCP connections.

The law firms or the so-called anti-piracy firms they have commissioned can analyze the data traffic, for example, by acting as a disruptor themselves with common P2P software . At least up until the end of 2012 there was no legally binding software used and accepted by regular authorities that demonstrably works differently or any credible substitute for the federal Trojan that has not yet been used .

Anti-piracy espionage therefore corresponds more to an illegitimate undercover operation in which a dealer is tried to be convicted by acting as a supposed big dealer. This form of investigative work, which also corresponds to eavesdropping , may legally only be carried out with police means after a court order necessary for this, but not via private detective or with personalized and unknown software from foreign companies that has not been officially licensed.

The OLG Cologne rejected an appeal in this context and demanded ongoing quality assurance to be documented and regular software checks by independent experts. The mere statement of an investigation company that their software works reliably and legally is not a criterion that can be traced.

The law firms are therefore moving with their claims, regardless of the actions of the suspected connection owner, in a legal gray area that can be answered with a counterclaim, since there is no software that can analyze downloads or uploads without an advertising provider of the Files or to be part of the exchange network.

Most lawsuits in Germany are dismissed in court against this background, but not if the accused has already admitted guilt or partial guilt.

Lawyers therefore recommend that you critically question the results of the investigation into alleged copyright infringements.

The legality has been up to date again since November 2013, when tens of thousands of users were warned in connection with the RedTube warning affair . Firstly, the method with which the IP addresses of the users were determined, secondly, the legal effect of the delivery of the postal addresses to the respective IP addresses and, thirdly, the subject of the warnings are controversial.

Possible abuse

For each individual case, the warning is a legitimate means of extrajudicial clarification , which is now provided for in Section 97a (1) sentence 1 UrhG. However, practice shows that in the vast majority of cases of warnings, the content is no longer about the removal of a copyright infringement, for example. Rather, the focus is on the costs of legal prosecution to be reimbursed in accordance with Section 97a (1) sentence 2 UrhG, in particular the remuneration claims of the lawyers consulted as well as license fees that the right holder could not achieve on the regular market.

The law against dubious business practices of October 1, 2013 regulates u. a. Costs for warnings under competition law, warnings according to the injunction law and copyright warnings new to protect consumers from excessive warning fees. For this purpose, the costs for the attorney's letters for the first warning to consumers will from now on regularly be capped up to a fee of 1000 euros object value. In addition, the warned person has a counterclaim for reimbursement of legal defense expenses if the warning is unjustified or ineffective. For a warning to be effective, u. a. it must be clearly stated “to what extent the proposed cease and desist obligation goes beyond the legal infringement warned” ( Section 97a (2) No. 4 UrhG). The law is intended to prevent law firms from building a business model based on excessive mass warnings in the event of minor violations of copyright law. ( BGBl. I p. 3714 )

From a fee law perspective, mandates for warnings are very lucrative for lawyers. The main reason for this is the case law of the courts involved, which assume high amounts in dispute even for the simplest legal violations. Sometimes even expressly as a sanction against the infringer. There is now talk of a real warning industry in this area . This finding is supported by various empirical evidence. Warning letters are often clichéd serial letters that lack a discussion and presentation of the specific individual case and are characterized by clear threats with regard to follow-up costs. At the end there is often a comparison offer with which the "actual" cost claims are significantly reduced with immediate payment.

Similar developments can be observed in the area of competition law .

A case in 2006 attracted attention in which a mother received a warning for selling, among other things, the clothes her children had worn. The plaintiff, represented by a law firm from Berlin, accused the woman of having acted commercially and sued her after she refused to pay the warning fee. The court came to the conclusion that the woman had acted commercially, especially since she also bought new goods in order to later sell them again at a profit. The claim made by the plaintiff under the law against unfair competition was therefore well founded. The defendant was sentenced to pay lawyers and court fees amounting to several thousand euros.

Contrary to frequent reports in the media, the criteria for commercial activity have been defined and substantiated by case law: Commercial activity is someone who carries out any economic activity on their own account, on their own responsibility and in the long term with the intention of making a profit. It is not important that the activity completely covers the needs of life. A rule of thumb among lawyers for commercial offers is therefore that someone acts commercially who either (a) sells the same thing several times or (b) achieves a considerable number of contracts or a considerable sum from several transactions in a period of approx. 3 months . In addition, classifications such as “Powerseller” are a clear indication of commercial activity. An entrepreneur is anyone who acts in the exercise of his commercial or self-employed professional activity, i.e. who regularly and permanently offers services on the market for remuneration. It is irrelevant whether the activity is part-time or with the intention of making a profit.

Continuous obligations

General

The warning is also provided in Germany according to Section 314 (2) BGB as a prerequisite for the termination of long-term obligations for an important reason or for the withdrawal from a mutual contract. .

Leases for living space

Because of the peculiarities of tenancy law for living space, where the landlord's right of termination is linked to special, restrictive conditions ( tenant protection ), the warning has a special meaning. In addition to a request to do or not to do something, the disregard of which is intended to result in a breach of contract, it also contains a threat of termination in the event of refusal. However, according to case law, the tenant is not allowed to apply for a declaratory action against such a warning. Actions for declaratory judgment are only permitted insofar as they concern the existence or non-existence of a legal relationship.

An alleged breach of contract contains only one element for the effectiveness of a termination.
The right to terminate, on the other hand, does not constitute a legal relationship that is independent of the existence of the tenancy.
Nevertheless, a warning does not remain without legal effect and can justify termination without notice if the tenant does not react to the warning.

In accordance with Sections 543 (1) and 569 (2) BGB, each contracting party can terminate the lease for good cause . In this context, there is an important reason if, taking into account all the circumstances of the individual case and weighing the interests of both parties, the terminating party cannot reasonably be expected to continue the rental relationship until the end of the rental period. An important reason is also particularly present if the peace of the house is permanently disrupted by one party.

Employment relationship

For warnings in labor law, see warning (German labor law)

Disorder of possession

In the event of a disruption of possession , the owner or owner of an item has the right to cease and desist against the interferer, which he can enforce with a warning and / or injunction.

Illegal acts

In principle, anyone against whom an illegal act is directed can demand that the other cease and desist if it is to be feared that the illegal act will continue or be repeated. He can do this with an injunction or with an injunction. An action for injunctive relief without a prior warning (injunction request) carries the risk that the defendant agrees immediately (immediate acknowledgment) and the plaintiff remains at his expense.

Situation in Austria

In Austria one speaks of an injunction .

Situation in Switzerland

In Switzerland, the warning is known in particular in labor law, building law and commercial legal protection , but is not generally regulated by law. A significant difference to the warning in Germany and Austria is that the legal fees for the warning cannot be passed on to the warned person out of court. Thus, in Switzerland, the person issuing a warning has to bear the costs of a warning himself.

literature

Friederike DeCoite, Thomas Muschiol: Warning and termination - what to do? Haufe, Planegg / Munich 2006, ISBN 3-448-07742-9 (formerly with ISBN 3-448-06546-3 ).
Heinz-Josef Eichhorn: Warning - what to do? 4th, revised edition. Bund-Verlag, Frankfurt am Main 2009, ISBN 978-3-7663-3931-7 .
Pascal Croset, Markus Dobler: The legally secure warning - a guide for the HR department and management . 1st edition. Gabler Verlag, Wiesbaden 2012, ISBN 978-3-8349-2959-4 .
Jens Adolphsen / Dominik Mayer / Frederik Möller: Mass warnings in copyright law - A business model put to the test , NJW 2010, 3483
Fabian Novara / Merle Knierim: The labor law warning after the "Emmely" decision , NJW 17/2011, 1175

Web links

Wiktionary: Warning - explanations of meanings, word origins, synonyms, translations

Individual evidence

↑ see § 93 ZPO

↑ Hamburg Higher Regional Court decides on the ability to issue a warning against GDPR violations . In: Datenschutzanwalt24.de . November 18, 2018 ( datenschutzanwalt24.de [accessed November 30, 2018]).

^ BGH judgment of May 19, 2010, Az. I ZR 140/08 - Proof of power of attorney

^ LG Hamburg, judgment, Az. 312 O 142/09

^ BGH: Company with its own legal department

^ LG Cologne, judgment of July 18, 2007, Az. 28 O 480/06

↑ new § 97a UrhG from September 1st, 2008

↑ ^a ^b Law against dubious business practices of October 8, 2013 ( BGBl. I p. 3714 )

↑ See BGH, judgment of July 17, 2008 - I ZR 219/05 ; BGHZ 136, 380, 390; BGH GRUR 1992, 318, 319 f .; BGH GRUR 2001, 453, 455; OLG Braunschweig, decision of August 10, 2009 - Ref .: 2 W 68/09.

↑ ECO, press release of May 31, 2011 ( Memento of July 16, 2011 in the Internet Archive )

↑ IGGDAW annual statistics on warnings in Germany 2014 ( Memento from February 2, 2017 in the Internet Archive )

↑ IGGDAW annual statistics on warnings in Germany 2010 ( Memento from June 2, 2016 in the Internet Archive )

↑ Law of October 1, 2013 in: Federal Law Gazette 2013 Part 1 No. 59

↑ http://www.computerwissen.de/it-sicherheit/web-security/artikel/abmahn-abzocke-43-millionen-bundesbuerger-wurden-bereits-abgemahnt.html

↑ Illegal file sharing. Consumer advice center: warning costs are too high. tagesspiegel.de, October 6, 2016, accessed October 6, 2016 .

^ Judgment of the Federal Court of Justice in Case I ZR 121/08

^ Press release on the judgment of the Federal Court of Justice in Case I ZR 74/12

↑ Resolution 6 W 82/11 of 7 September 2011th

↑ http://www.justiz.nrw.de/nrwe/olgs/koeln/j2011/6_W_82_11_Beschluss_20110907.html

↑ https://www.heise.de/newsticker/meldung/Porno-Abmahnungen-Indizienkette-zur-IP-Adressen-Ermittlung-verdichtung-sich-2065879.html

↑ Redtube strikes back , stern.de, December 13, 2013

↑ Overview at Law Office Ferner

↑ OLG Hamburg, decision of March 10, 2004, Az. 5 W 3/04 = GRUR 2004, 342; OLG Hamburg, ruling of November 14, 2006, Az. 5 W 173/06 = GRUR 2007, 375

↑ Berliner Zeitung, article from December 27, 2010, "Die Abmahn-Industrie"

↑ Frankfurter Rundschau, article from December 26, 2010, "In the Fangs of the Abmahnindustrie"

↑ Sueddeutsche Zeitung, article from November 9, 2009, "Die Anti-Piraten"

^ Lars-Oliver Christoph : The perfidious (warning) wave . DerWesten , February 19, 2010, accessed December 16, 2012 .

^ [1] , judgment LG Berlin Az. 103 O 75/06

↑ Palandt, BGB, 65th edition, § 14 margin no. 1)

^ LG Berlin, Az .: 65 S 377/03; BGH NJW 2000, 2281; BGHZ 68, 331; Zöller / Greger, ZPO, 24th edition, § 256 Rn, 3; Baumbach / Lauterbach, ZPO, 60th edition, § 256 Rn. 6; BGH NJW 2000, 354; BGH NJW 2001, 3789; BGHZ 120, 239, 253

[1] see § 93 ZPO

[2] Hamburg Higher Regional Court decides on the ability to issue a warning against GDPR violations . In: Datenschutzanwalt24.de . November 18, 2018 ( datenschutzanwalt24.de [accessed November 30, 2018]).