INspiREJean-Monnet-Centre of Excellence
|Herzliche Einladung zur Podiumsdiskussion am Dienstag 13. November 2018, 19:00 Uhr (Einlass 18:30 Uhr) im Augsburger Rathaus, Oberer Fletz. Der Eintritt ist frei.|
Herzliche Einladung zur Podiumsdiskussion
Google, Amazon, Facebook - Wer hat ein Recht auf meine Daten?
am Dienstag 13. November 2018, 19:00 Uhr (Einlass 18:30 Uhr) im Augsburger Rathaus, Oberer Fletz. Der Eintritt ist frei.
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Eine Veranstaltung des Jean-Monnet Exzellenzzentrum INspiRE der Juristischen Fakultät der Universität Augsburg (Prof. Dr. Thomas M.J. Möllers), des Europabüros mit Europe Direct-Informationszentrum der Stadt Augsburg, der Europa-Union Augsburg e.V. und der Augsburger Volkshochschule – Augsburger Akademie e.V.
|Report on the panel discussion on 13 November in Augsburg's town hall|
Over 100 interested citizens came to Augsburg's town hall for the panel discussion on 13 November 2018 with the topic "Google, Amazon, Facebook – Who has a right to my data?". The invitations to this event came from the Jean-Monnet Centre of Excellence INspiRE (European Integration – Rule of Law and Enforcement) under the leadership of Prof. Dr. Thomas M.J. Möllers from the law faculty of the University of Augsburg. This Centre of Excellence is funded by the Erasmus+ Program of the European Union and - for this event - worked in cooperation with the Europe-office of the city of Augsburg, the European Union Association Augsburg (Europa-Union Augsburg e.V.) and the adult education centre of Augsburg (Volkshochschule – VHS).
The opening words of the organisers emphasised the surplus value for the citizens of establishing a network between science and legal practice. An impulse-speech of Prof. Dr. Michael Schmidl (lawyer in Munich and honorary professor in Augsburg's faculty of law) then gave an introduction on the basics of European data protection law. He explained that the General Data Protection Regulation (GDPR) is based on the principle, that collecting and processing of data is first and foremost prohibited, unless the law explicitly allows it. Following the transparency principle, is has to be revealed to the person affected, what data is being processed and for what cause. Furthermore, they have a right to information on what personal data is saved and also a right to have the data deleted. But the individually affected person does not have an exclusive right to their own data, as the legitimate interests of third parties to collect the data have to be taken into account. Afterwards, the experts on stage in the areas of politics, science and economy discussed the strengths and weaknesses of data protection law (Prof. Dr. Michael Schmidl, lawyer Munich, honorary professor in Augsburg's faculty of law; Dr. Volker Ullrich, member of parliament, committee for European affairs and for law and consumer protection; Werner Hülsmann, constant chairman of the German association for data protection (Deutsche Vereinigung für Datenschutz e.V. – DVD); Rita Bottler, representative for data protection, Bavarian chamber of industries and commerce (Bayerische Industrie- und Handelskammertag e.V. – BIHK); Werner Stengg, European Commission, Head of Unit „E-Commerce & Online Platforms“ – DG CONNECT; Michael Will, head of ministry department, Bavarian ministry for internal affairs and integration, representative for data protection).
Data has evolved to an economical good, as for more and more companies their economic success is dependent on efficiently collecting and processing data. That is why companies are interested in receiving as much personal data as possible and as comprehensive as possible, in order to use these for their economic growth.
Furthermore, collecting and processing data cannot simply be qualified as a disadvantage for citizens. If used responsibly and meaningful, collecting and processing data can have a large, social benefit. One can, for example, think about analysing traffic data for land-use planning. Also, hosts offer their users free content, if they allow the host to observe their search behaviour. Personal data are therefore often the consideration for providing free internet applications. If users would not supply certain information, many applications would not function properly, be less efficient for the user or more expensive. In many cases the processing of data is plainly necessary or can vastly simplify processes.
Big companies have the power over an enormous amount of digitally collected information – some so personal, that many people in the analogous world would not share them, even with their closest friends. Some hosts are in a monopoly position of power, because their user have to consent into the processing of their data, or they are not able to use the application ("take it or leave it"). The big companies, that collect and process data efficiently, also have a big competitive advantage over their smaller competitors, often causing those smaller companies to not be able to stay active on the market. This networking effect needs to be compensated by an effective cartel and data protection law in order to protect the citizen and the competition itself. There are comprehensive sanctions by public authorities for misuse by companies. But next to interventions by the state, the citizen him-/herself is called upon, to choose responsibly, what data he/she wants to expose. In order to do this, the citizen can already regulate the specific settings for an application. Even the best data protection law is of no use, if the user him-/herself does not handle their personal data in a responsible way.
Therefore, the new GDPR has to be seen as an opportunity for companies as well as for citizens – whose interests are mostly contrary – to facilitate a unified protection standard. The citizen can trust on compliance with this standard, and the prerequisites are identical in the entire European Union. This also leads to a unified and simplified implementation for companies within the European Union.
Finally, especially companies are interested in clarifying the legal situation and, therefore, also clarifying legal questions regarding the GDPR, that first and foremost exist, because data protection is becoming more and more complex in practice. On the side of those, who process data, as well as on the side of those, who supply their data, a sensation of uneasiness arose as the GDPR was introduced, mostly because of a lack of interest and false information as well as insecurity. Citizens really do not know, what is being done with their data and are scared of becoming a person who has no secrets. Associations and companies are afraid of large administrative efforts and high fines. It was criticised, that the GDPR does not differentiate between small associations, middle-class companies and major corporations. The administrative effort (e.g. for the documentation of consents, list of proceedings, etc.) at the beginning seems to be a large hurdle especially for small units, which also leads to high expenditures. The counterargument was made, that prior to the introduction of the GDPR the national data protection law applied equally to big corporations and small associations with a similar protection standard and that the new European regulation does not change much. Instead, the focus was redirected onto data protection and a sensitivity in this subject was created (which was only weakened in the previous years).
Data protection needs to function globally. It does not help the European citizen, if his/her data is handled responsibly inside Europe, but there is no protection, once the data is transferred into a third country. In this respect, the unification of data protection standards within Europe is definitely a step in the right direction. But international structures also need to be developed even further. The introduction of a European data protection law was necessary to strengthen the European internal market and is an opportunity for large, digital corporations to settle within and connect with Europe, as disadvantages due to location (different law in member states) have been abolished in contrast to other major jurisdictions. The possibilities to enforce data protection, especially against foreign corporations, has not been seen as ideal in the legal reality, even though – theoretically – fines amounting to tens of millions can be imposed. Nevertheless, the GDPR is a good and important step to strengthen the enforcement of data protection law. As long as Europe speaks with one voice and has uniform enforcement mechanisms and controlling authorities, enforcement against large, foreign corporations can be successful.
In regard to future developments, it is necessary to constantly evaluate the efficiency and legal enforcement of the GDPR. Gaps and regulatory overreach need to be identified and handled. In order to maintain the positive effect a unified data protection standard has on Europe, it is important that authorities are not afraid of imposing large fines in cases of severe violations. But, especially the sanctions on associations as well as on small and middle-class companies need to be proportional and made with good judgment.
In summary, the new European data protection law was assessed positively: Corporations do not voluntarily expose themselves to get fined. Handling data responsibly can even have be beneficial for the marketing their own companies. An effective functioning data protection law that includes the citizens’ interests and the companies’ can even be an export model outside of Europe and therefore gain global attention.
The participants did not only attentively follow the discussion of experts with very different opinions, but many of them also participated with own questions and comments. It was made clear, that data protection law in times of further digitalisation affects every citizen and will keep affecting them in the future. Following this, Prof. Dr. Thomas M.J. Möllers summarised the discussion in this closing words. Afterwards, the participants had the opportunity to exchange views with the experts during drinks.
|Report on the panel discussion on 18 July 2017 in Augsburg’s town hall|
The emissions scandal continues to draw more and more circles: If diesel vehicles are not prohibited until the end of the year, the European Union threatens with driving bans. But what does this ultimately mean in regard to consumer rights? In the United States of America solutions have been found by being able to file class action suits. Can these mechanisms also help within Europe, or are they rather a danger? Five experts in the areas of science and practice from Berlin, Munich, Constance and Augsburg passionately discussed this question on 18 July 2017 in Augsburg’s town hall. The invitations to this event came from the Jean-Monnet Centre of Excellence INspiRE (European Integration – Rule of Law and Enforcement) under the leadership of Prof. Dr. Thomas M.J. Möllers from the law faculty of the University of Augsburg. This Centre of Excellence is funded by the Erasmus+ Program of the European Union and for this event worked in cooperation with the European Union Association Augsburg (Europa-Union Augsburg e.V.) and the Europe direct information centre of the city of Augsburg.
In his introduction into class actions, Professor Dr. Thomas M.J. Möllers explained, that buyers of vehicles in Germany affected by the emissions scandal have to file individual suits against the manufacturers. Also, the court judgments are very different in regards to warranty rights, even though the initial situation is always the same. Every plaintiff has to decide himself, if he wants to take on the risk of litigation (often through several instances), as this can result in court and attorney fees amounting to several thousand euros. The insecurity of the lawsuit succeeding shies away many consumers, which leads to them not taking any legal steps against the injuring company. Therefore, a deficit in the enforcement of the law arises.
Möllers also showed, that in several legal areas in Germany, procedural models, that can eliminate such deficits, already exist. For example, consumer protection associations can precede against illegal general terms and conditions with injunctive reliefs and therefore enable redress for all consumers affected by those terms.
Multiple investors can join a model case procedure for violations of publication obligations in the capital market, according to the Model Case Procedure Act for Investors ( Kapitalanleger-Musterverfahrensgesetz – KapMuG). This results in the courts findings applying uniformly for all model plaintiffs and the model case ruling having a binding effect on any future proceedings. In this way, certain legal and factual issues can be bundled in one case and therefore decided uniformly for all investors. But a model case procedure also has deficits. The so-called Telekom-Proceeding (OLG Frankfurt, 23 Kap 1/06) with more than 17,000 plaintiffs was dragged on for several years. The anticipated acceleration of the proceedings stayed absent. Even more, the specific amount of damages still had to be pursued in court by every plaintiff individually.
The advantages and disadvantages of collective redress were then discussed on the panel by Dr. Beate Czerwenka from the Federal Ministry of Justice and Consumer Protection, Florian Popella, responsible for key questions at the Employers’ Associations of the Metalworking and Electrical Industries in Bavaria (Verband der Bayerischen Metall- und Elektroindustrie – bayme vbm), Prof. Dr. Astrid Stadler from the law faculty of the University of Constance, Dr. Ottmar Lell from the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband) and Prof. Dr. Thomas M.J. Möllers. The discussion was moderated by Thorsten Frank, chairman of the Europa-Union Augsburg e.V.
In politics the topic of class actions is discussed constantly. The European Commission published a recommendation for collective redress in proceedings for injunctive relief and damages (COM 2013/396/EU). The Federal Ministry of Justice and Consumer Protection recently received a draft bill for introducing class action suits.
Collective suits could relieve pressure from the courts, which are otherwise at risk of being engulfed in a flood of lawsuits. The individual litigation risk for the plaintiff is significantly lower as in the case of individual lawsuits. Also, the effect of rational disinterest is reduced. A high risk of costs within quite low amounts of awarded damages are often the reason, why consumer do not claim damages in individual lawsuits. The economic wins by the companies because of their violations then stay with the company. The effect, that companies behaving illegally could even gain money, needs to be avoided in the future. This gap in enforcement can be reduced by collective redress, as the persons affected can exercise their rights easier and with a lower cost risk and are therefore encouraged to join a class action, even if it the amount of damages is rather low.
The experts also talked about the legal situation in other nations. Especially in the USA class actions suits constitute an effective and quite fast way of compensating damages. However, it was pointed out, that the legal situation in the USA is at risk of being abused, because the pressure on companies to settle is quite high, as they otherwise risk having to pay large sums of damages. Also, it is expensive to conduct a case, as every party has to bear their own costs.
Over regulatory law needs to be avoided in Europe. No lawsuit-industry should be created, that confront companies with partly exaggerated demands and drive them into insolvency.
The threatening scenery of the American situation in Europe, which is oftentimes the main argument of people opposed to collective redress, is simply over-exaggerated. The legal framework in Europe, especially in Germany, is very different to that of the United States. In particular, the (often excessive) punitive damages are not possible in the German legal system.
In previous years, collective redress was already introduced in different variations in other European member states, such as is France, Italy, the Netherlands and Great Britain. Germany is still lagging far behind in this matter.
The main aspect of this discussion was primarily the tension between effective consumer protection and the interests of corporations, to not be engulfed in a flood of lawsuits. The experts developed various solutions and tried to find a compromise. The interests of the consumers and the corporations need to be balanced in the creation of new lawsuit possibilities. The advantages and disadvantages of the different lawsuit possibilities were discussed; here, group claims, representative actions, opt-in and opt-out models were named. On a national, as well as on a European level, a solution for collective redress needs to be developed in order to be able to withstand the competition of the legal systems. In creating new forms of collective redress, care must be taken to reduce the deficits of other types of procedures. The duration of proceeding in collective redress needs to be shortened.
Möllers then summarised the ideas: The goal of class actions cannot be to injure companies. Nevertheless, it needs to be possible to skim off the profits earned by companies acting illegally, even going beyond regular amounts of damages. But still, the boundary of exorbitant punitive damages, as they are known from the American judicatures, cannot be acquired. All participants agreed on this point.