Lawyer for European IT law

Your lawyer for European IT law: European IT law is a complex and dynamic area of law that deals with the regulation of information technology in the European Union (EU). It covers a wide range of topics, including data protection, cyber security, e-commerce, intellectual property and telecommunications.

European IT law has a significant impact on the national IT law of the member states, as it creates a common legal framework for the digital single market in the EU. This makes it possible to draw up a fundamental legal assessment for all EU member states in selected areas of IT law at European level.

Specialist lawyer for IT law Jens Ferner (Germany) advises companies on European IT law: The Europeanization of IT law offers companies outside Europe the opportunity to clarify elementary legal issues for the extensive, economically strong EU area in advance. Especially the blatantly important areas such as data law, data protection law and IT security law are subject to Europe-wide regulations!

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European IT law: basics and areas of application

European IT law is an integral part of EU law and aims to create a single digital market. It regulates the use and protection of data, the security of networks and information systems, electronic commerce and the rights and obligations of users and providers of IT services.

Some of the most important legal acts in this area are the General Data Protection Regulation (GDPR), the Directive on the security of network and information systems (NIS Directive and NIS2 Directive) and the Directive on electronic commerce. However, there are also legal acts that are not directly attributable to IT law, such as consumer law, which determine which general terms and conditions and other contractual terms and conditions are permissible.

Effects on national IT law

European IT law affects national IT law in a variety of ways. On the one hand, it obliges the member states to adapt their national law to the EU requirements. This leads to a harmonization of IT law throughout the EU, which facilitates cross-border trade and data exchange.

Secondly, it creates a common legal framework for the regulation of IT services, providing legal certainty for providers and users. Thirdly, it can act as a catalyst for reform of national IT legislation by encouraging Member States to modernize their legislation and adapt it to technological developments.

An IT law lawyer with a European focus helps to recognize the overall picture and to interpret national regulations from the outset in such a way that successful lawsuits can be avoided.

Important EU legal acts in European IT law

There are several EU directives and regulations that shape national IT law. Here are some of the most important ones, although our website provides a more in-depth overview:

1. General Data Protection Regulation (GDPR): This regulation is a central component of European data protection law. It lays down strict rules for the processing of personal data and gives citizens extensive rights in relation to their data. The GDPR has a significant impact on national IT law, as it must be implemented by all EU member states.
2. Directive on the security of network and information systems (NIS Directive): This directive is the first EU-wide legal instrument for cyber security. It obliges Member States to develop national strategies for the security of network and information systems and to comply with a set of minimum security requirements. It is supplemented by the Cyber Resilience Act, which will have a noticeable impact on product compliance.
3. Directive on electronic commerce (E-Commerce Directive): This directive regulates various aspects of electronic commerce in the EU, including the liability of online service providers, commercial communications and electronic contracts.
4. Copyright Directive in the Digital Single Market: This directive aims to modernize copyright law in the EU and adapt it to the digital age. It contains provisions on the liability of online platforms for copyright-protected content and on access to works for educational purposes.
5. Computer programs: The EU Directive on the legal protection of computer programs (Directive 2009/24/EC) is an important legal instrument that regulates the copyright protection of computer programs in the European Union. It was originally adopted in 1991 and later replaced by Directive 2009/24/EC. The Directive clarifies that computer programs are protected by copyright in their expression. This means that the source code and object code of a program are protected, but not the ideas and principles on which the program is based. The Directive also contains provisions on the rights of rightholders, including the right of reproduction, distribution and communication to the public. However, it also provides for exceptions to these rights, e.g. for copying or modifying a program for personal use or for reverse engineering for the purpose of interoperability. The EU Directive on the legal protection of computer programs has a significant impact on the national IT law of the member states, as it creates a common legal framework for the copyright protection of computer programs in the EU. It obliges the member states to adapt their national laws to the requirements of the directive in order to ensure uniform protection of computer programs throughout the EU.
6. Directives on contracts: The Consumer Rights Directive, the Digital Content Directive and the Sale of Goods Directive shape contract law in IT law.
7. Regulation on Consumer Protection Cooperation (CPC Regulation): This regulation lays down rules for cooperation between national consumer protection authorities in the EU, including the enforcement of consumer protection laws in the digital area.

These legal acts have a significant impact on national IT law, as they create a common legal framework for the regulation of IT services in the EU and oblige the member states to adapt their national laws to the EU regulations.

Conclusion on European IT law

European IT law plays a decisive role in shaping the digital single market in the EU. It has a significant impact on national IT law, as it creates a common legal framework for the regulation of IT services and obliges member states to adapt their national laws to EU regulations. In view of the rapid technological development and the increasing digitalization of the economy and society, it can be assumed that European IT law will continue to play a key role in shaping national IT law in the future.

European platform regulation is a multi-layered topic that spans several legal acts. These legal acts are of fundamental importance to IT lawyers, as they form the basis for understanding and applying the legal framework in the digital world. This is where it becomes particularly clear why IT law needs to think not only on a national level, but rather in terms of European IT law.

The following are some of the key pieces of legislation governing the regulation of platforms, websites and data in the EU.

The Cologne Higher Regional Court (OLG), 15 U 3/23, has reached an interesting decision on the unauthorized use of personal data in advertising: According to the OLG, the amount of damages under the GDPR is (also) to be measured according to what is usually paid as a license fee for an advertising use. The OLG explicitly refers to the license analogy that is customary in Germany for the assessment of damages in copyright law – which is also to be applied in data protection law.

License analogy as the basis for calculating damages after copyright infringement: Regularly in the case of copyright infringement, someone wants to calculate damages using the so-called license analogy. The idea behind this license analogy in German law is that the infringer of a right should not be in a better position than the lawful user – and is then treated as if a proper license had been concluded, which of course must be remunerated. But how is this license measured?

In everyday life, I often encounter laypersons, but also lawyers, who obviously do not know the details of the license analogy. Rather, they tend to confuse the calculation of damages with the schematic application of some remuneration guidelines. However, this is not how it works. In the following, some explanations on the application of the license analogy in copyright law.

The case of the Regional Court of Cologne, 33 O 39/20, concerned the acquisition of trade secrets through reverse engineering in the biological field (the acquisition of antibodies was at issue). The decision illustrates the – repeatedly underestimated – importance not only of well-worded contracts, but also of the actual conclusion of the contract. This decision in particular makes it clear that companies should pay very close attention to ensuring that their services, which are actually protected as trade secrets, do not unintentionally become fair game – it is finally time to wake up and stop treating the issue of trade secrets stepmotherly!

The Munich Higher Regional Court (20 U 3236/22 e) had the opportunity to comment on the obligations of a provider of standard software on the occasion of the termination without notice of a software and license subscription.

When developing software (“software development”) and using it commercially, some legal aspects have to be considered in order to avoid possible legal problems.

In the last few years of my work, the same issues have emerged time and again, some of which are underestimated and others ignored by software developers. The local IT startup industry suffers from something that is rarely observed in this blatant form abroad: the complete refusal of legal assistance. The idea of budgeting a fixed portion for ongoing legal costs overwhelms many – and ultimately leads to unnecessary additional costs.