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Reddit Shows What Regulation Looks Like in Practice

On 24 June 2026, Reddit announced that it would automatically switch teen accounts in the EU to the most restrictive privacy settings – permanently locked in for 13- to 15-year-olds, set as a changeable default for 16- and 17-year-olds – and tie access to NSFW content to age verification going forward. The announcement came immediately after the European Commission’s third and final meeting of the “Special Panel on child safety online” on 16 June 2026, and coincided with ongoing DSA enforcement proceedings against several adult-content providers.

Reddit is responding to regulatory pressure coming from several directions at once. The European Commission is currently advancing youth protection in digital services not only through legislation and guidelines, but also through active enforcement. This article looks at the role the Digital Services Act (DSA) plays in this, who Article 28 DSA actually applies to, where matters are headed next, and which other rules apply alongside it.

The DSA at a Glance: A Tiered System of Obligations

The Digital Services Act (Regulation (EU) 2022/2065) has been fully applicable since 17 February 2024 and sets out the obligations of intermediary service providers in the EU. Its tiered system of obligations imposes requirements of varying scope depending on the type and size of the service – from basic transparency and reporting rules for all intermediary services, through additional obligations for hosting services and online platforms, up to the strictest requirements for very large online platforms and search engines (VLOPs/VLOSEs).

This tiering matters for correctly gauging the reach of individual provisions, such as Article 28 DSA discussed here: not every obligation applies to every service provider in the same way.

Who Does Article 28 DSA Actually Apply To?

Article 28 DSA is specifically addressed to providers of online platforms that are accessible to minors. What matters is not whether a service is expressly aimed at minors, but whether minors can access and use it at all. This covers, in particular, social networks, video and sharing platforms, and comparable services with user-generated content, such as Reddit. Under Article 19 DSA, micro and small enterprises within the meaning of EU Recommendation 2003/361/EC are exempt from the additional obligations for online platforms (Articles 19–28 DSA) and therefore also from Article 28 DSA. Purely B2B services and platforms without any meaningful accessibility to minors likewise fall outside the scope of the provision.

Nevertheless, this classification is not limited to traditional social networks. Even services that do not primarily function as social-media platforms could be covered, based on specific features typical of such platforms. 

If one or more of these features are present, services that are not traditional social media platforms may also be affected. Not least, this could include online games with public chat features or marketplaces for virtual goods, messaging services with public channels or groups, AI chatbots and virtual companions with personalized interaction, learning platforms with forums or social profiles, livestreaming services with viewer chat, as well as marketplaces and classifieds portals with user-generated listings. 

Whether an obligation under Article 28 DSA actually applies in a given case depends on an overall assessment. The decisive factors are, in particular, the wording of the terms and conditions as well as the actual user structure known to the provider—and not the service’s original target audience alone.

What the Guidelines Specifically Require from Providers

Article 28(1) DSA requires covered platforms to take appropriate and proportionate measures to ensure a high level of privacy, safety and security for minor users. The wording was deliberately left open and required further specification by the Commission.

That specification followed on 14 July 2025 in the form of guidelines containing a non-exhaustive list of risk-appropriate measures against grooming, harmful content, addictive design and cyberbullying. Key recommendations include:

• Accounts of minors set to private by default, to guard against unwanted contact and data access;
• Age verification for access to adult content (e.g. pornography, gambling), and age estimation where contractual minimum ages differ;
• A risk-based approach that takes account of the platform’s nature, size, purpose and user base.

For platform operators, this may mean adjusting default settings, implementing technical age verification or estimation procedures, and documenting a risk assessment of their own service functions – the kind of measures Reddit has now put in place.

Digital Age Verification Is Coming: The EU Wallet on Its Way

In practice, the guidelines are complemented by the age-verification solution developed by the Commission (the “mini wallet”), which allows users to prove their age without disclosing any further personal data. It is technically compatible with the forthcoming EU Digital Identity Wallet and has been “feature ready” since 15 April 2026, meaning Member States and market participants can now build on it. The Commission is aiming for a Union-wide rollout of both solutions by the end of 2026. For platform operators, this points toward a single, EU-wide standard for age verification that is set to replace the patchwork of approaches used by providers so far.

How Old Is Old Enough? The Current EU Debate on Fixed Age Limits

At the same time, a fixed minimum age is under discussion. In a resolution of 26 November 2025, the European Parliament called for an EU-wide age limit of 16 for social media, video platforms and AI companions that pose risks to minors, subject to parental consent, together with a general access ban for children under 13. At national level, the expert commission “Child and Youth Protection in the Digital World,” set up by Federal Minister Karin Prien in September 2025, presented a total of 56 recommendations on 24 June 2026. According to press reports, these are said to include two alternative approaches: a statutory age limit of 13 combined with effective age verification, or service- and function-specific restrictions based on risk assessment. The ministry does not plan to publish the full recommendations until mid-July 2026. Minister Prien herself has already spoken out in favor of the first alternative. Neither approach has yet been implemented into binding law, but both signal that platform operators should prepare for stricter requirements.

Youth Protection: A Regulatory Patchwork

Depending on the specific service, other rules can apply alongside Article 28 DSA, including the German Youth Protection Act (Jugendschutzgesetz, JuSchG) for carrier media and certain gaming platforms, the Interstate Treaty on the Protection of Minors in the Media (Jugendmedienschutz-Staatsvertrag, JMStV) for telemedia with content that may impair development, the Audiovisual Media Services Directive (AVMSD) for video-sharing platforms, and the Unfair Commercial Practices Directive (UCPD) for issues such as loot boxes and manipulative in-game purchases. Which of these provisions apply alongside the DSA in a given case again depends on the specific service and its content.

Finding Your Way Through the Regulatory Jungle

As the example of Reddit shows, youth protection in the digital space is evolving dynamically across several levels at once. For providers, this adds up to an increasingly complex web of DSA rules, national law and consumer-protection requirements. We would be glad to help you navigate this regulatory environment and identify the obligations that specifically apply to your service.

Purchasing a historical monument entails not only acquiring a valuable building but also assuming the legal obligations tied to its preservation. This is particularly true when the buyer is aware of the monument's status and the need for restoration - essentially, when the acquisition is made "with open eyes." Recent case law imposes stringent requirements in such instances, emphasizing that preservation, structural alterations, or even demolition of the monument should only be permitted under exceptional circumstances. The ruling by the Administrative Court of Würzburg on April 17, 2026 (Case No. W 5 K 25.782) illustrates that buyers in these situations face significantly heightened obligations to demonstrate compliance and provide evidence.

Historical monuments shape the character of German cities and towns more than any other element of the built environment. Historic town halls, late 19th-century villas, industrial facilities, and half-timbered houses contribute to the unique identity of local centers while documenting the social, economic, and architectural developments of past eras. They serve as vital testimonies to local history and often possess considerable scientific, artisanal, or artistic value. Visitors from countries with relatively young architectural histories may find it surprising that modern office spaces or hotels can be found within buildings several hundred years old. However, the continued use of historical structures is crucial for their preservation.

Under Article 70 of the German Basic Law (GG), monument protection law falls within the legislative competence of the federal states. Consequently, there are 16 state monument protection laws, each with varying regulations but all aimed at the protection and preservation of cultural monuments as witnesses to history, art, and culture. The core principle of all state laws is the obligation to preserve. Owners are required to maintain their monuments within reasonable limits and protect them from harm. This protection typically extends beyond the building itself to include its surroundings, provided they contribute to the monument's overall impact.

For owners, developers, and investors looking to alter or repurpose a monument, this often presents significant temporal, financial, and organizational challenges. Unlike standard building permit procedures, monument protection authorities frequently demand extensive documentation, restoration assessments, conservation concepts, and detailed plans and photographic documentation. Additionally, there are often repeated requests for further information, consultations with various specialized authorities, and lengthy approval processes. The implementation of economically viable repurposing concepts frequently encounters substantial resistance from monument protection authorities. Investors may feel that the principle of "everything remains as it is" is given undue weight over innovative and economically sensible solutions - even when prolonged vacancy threatens.

Particularly stringent requirements apply when an owner acquires a monument with full knowledge of its status and often significant restoration needs. In such cases, they cannot claim that the legal burdens of monument protection were unexpected. Rather, the courts expect that the buyer considers the specific requirements of monument protection law in their investment decision at the time of purchase. The more conscious the acquisition, the higher the demands for later proof of economic unfeasibility.

The extent of these heightened evidentiary obligations is exemplified by the ruling of the Administrative Court of Würzburg on April 17, 2026.

The case involved a former sanatorium built between 1906 and 1913 in Bad Kissingen, classified as a historical monument. The owner purchased the property with knowledge of its status and later applied for a permit to demolish the building. After the relevant monument protection authority denied the application, she filed a lawsuit with the Administrative Court.

The monument protection authority argued that the owner had knowingly acquired the property as a historical monument, thereby assuming the associated preservation obligations. Merely citing substantial renovation costs or failed negotiations with potential operators was insufficient to demonstrate economic unfeasibility. The plaintiff was required to substantiate that a monument-compliant use was permanently excluded and that serious marketing efforts had been unsuccessful over an extended period. However, she failed to provide such evidence.

The Administrative Court upheld this view. The claim of economic unfeasibility was rejected. The court found that the submitted economic viability assessment did not meet the high standards required for such proof. The focus was not on the individual financial situation of the owner but rather on the perspective of a property owner open to monument concerns. The critical question was whether the monument could, considering its unique characteristics, be economically self-sustaining.

This assessment was based on a comprehensible economic viability calculation, where renovation costs - adjusted for deferred maintenance and necessary building code measures - were compared against achievable revenues, potential funding, and tax benefits. A mere comparison of renovation costs with those of new construction was deemed insufficient, as this would typically lead to the economically most attractive solution being the demolition of protected buildings. Furthermore, the court required a usage and restoration concept coordinated with the State Office for Monument Preservation, along with a robust economic forecast covering approximately 15 years. Only the owner could develop realistic usage alternatives and provide the authority with a solid decision-making basis.

This ruling underscores that acquiring a monument "with open eyes" carries significant legal consequences. Those who consciously choose a restoration-needy historical monument also assume the risks associated with the preservation obligations tied to the property. Consequently, the requirements for demonstrating economic unfeasibility increase. Simple assertions of lack of profitability or failed marketing attempts are typically insufficient. Comprehensive documentation of marketing efforts, clear usage analyses, serious consideration of monument-compatible alternatives, and reliable economic calculations - ideally coordinated early with monument authorities - are essential.

For owners and developers, this leads to a clear course of action: the success of a monument protection approval process is often determined long before the actual application is submitted. A thorough inventory, meaningful plans and photographic documentation, robust usage and restoration concepts, and a meticulously documented examination of all monument-compatible alternatives are necessary. Only on this basis can the required economic assessment meet the high standards set by the courts.

However, this ruling is not only directed at owners and investors. Monument authorities are also called upon to support viable and economically feasible usage concepts and to engage constructively in dialogue with project developers. The long-term preservation of historical monuments is typically achievable only when monument protection and economic viability are not viewed as opposing forces. Historical structures can only be sustainably preserved if they can continue to be used meaningfully in the future. Therefore, the preservation of monuments is not a one-way street; it requires the willingness of all parties involved to develop practical and monument-compatible solutions.

SKW Schwarz has been recognised in the latest Leaders League Germany 2026 rankings across four practice areas:
 

Germany – Best Law Firms for Data Protection – 2026
Recommended
Matthias Orthwein

Germany – Best Law Firms for IT & Outsourcing – 2026
Excellent
Oliver Hornung, Daniel Meßmer and Matthias Orthwein

Germany – Best Law Firms for Media, Sports & Entertainment – 2026
Highly recommended
Norbert Klingner and Andreas Peschel-Mehner

Germany – Best Law Firms for Trademark Litigation – 2026
Highly recommended
Dorothee Altenburg, Magnus Hirsch, Margret Knitter and Rembert Niebel
 

These rankings reflect SKW Schwarz's expertise in data protection, IT & outsourcing, media law and trademark litigation, and underline the firm's strength in advising clients at the intersection of technology, digital business, intellectual property and media.

We are delighted by this recognition and would like to thank our clients for their continued trust and confidence, as well as all our colleagues whose commitment and expertise contributed to this achievement.

About Leaders League
Leaders League is one of the internationally established legal directories, publishing annual rankings across numerous jurisdictions and practice areas. Its research is based on an independent assessment of market information, references and law firm submissions.

With two recent decisions, the Regional Courts of Munich I and Berlin II have, for the first time, taken a closer look at AI‑supported search and answer formats. Both cases concerned Google’s “AI Overview”.

Although the underlying facts differ, the core legal question in both decisions is essentially the same:

When does a platform have to treat the output of an AI feature as its own statement?

Search engines and many platform models typically act as aggregators and “technical tools” for finding third‑party content. As a rule, they benefit from liability privileges: they are usually only liable for third‑party content once they have actual knowledge of a legal violation and then fail to remove or block it (“notice and take‑down”). By contrast, they are generally directly liable for unlawful content that they themselves publish. This is precisely where the courts step in. 

Once platforms “adopt” third‑party content as their own, they are generally treated as if they had published it themselves.

The courts essentially apply this principle to AI‑generated outputs in these two decisions as well: if an AI output is understood as the provider’s own statement, courts no longer treat the service as a neutral intermediary. The special liability privileges enjoyed by classic search engines and host providers then apply only in a limited way, if at all. The provider is, in principle, liable as if it had authored the content itself. The two decisions take different approaches, but together they offer initial guidance on when courts tend in one direction or the other.

LG Munich I: “AI Overview” as the Provider’s Own Statement

In the case before the Regional Court of Munich I (judgment of 28 May 2026 – 26 O 869/26), a publishing company brought an action against Google in relation to the “Übersicht mit KI” (AI Overview) feature. When the company name is entered into the Google search bar, the autocomplete function already suggests, among other things, the term “Betrugsmasche” (“scam”). Once this suggestion is selected, an AI Overview appears above the conventional search results.

This overview consists of a continuous text in which the company is explicitly linked to allegations such as “unseriöse Geschäftspraktiken” (“untrustworthy business practices”), “Betrugsmasche” (“scam”) and “Abo‑Fallen” (“subscription traps”). The text is structured into several sections, includes links to third‑party websites, rephrases statements from sources in its own words and even contains concrete recommendations (“If you are dealing with …, be extremely cautious”, “If you have a subscription, try to cancel it in due time”, “If you receive unjustified demands, do not pay”). The overview also contains statements and conclusions that cannot be found in this form in the underlying sources.

The Munich court considers this AI Overview to be Google’s own substantive statement, not merely a technical display of third‑party content (paras. 33 et seq.). In particular, it stresses that:

• the AI generates a self‑contained narrative text that summarizes, structures and evaluates search results in its own words,
• it produces statements and links between pieces of information that are not contained in the underlying third‑party sources at all (so‑called “hallucinations”),
• from the perspective of a reasonable average user, the AI overview appears as an answer provided by Google to the search query, not as a neutral list of results; the advisory elements reinforce this impression.

On this basis, the court assumes that Google has “adopted” the AI content as its own. Google is therefore liable for unlawful AI overviews, in particular for untrue, reputation‑damaging factual allegations about the claimant.

In addition, the court finds that it is not sufficient simply to switch off the specific AI answer. Due to the AI’s “black box” character, similar content may be generated again at any time; in the court’s view, the risk of repetition remains. Overall, the decision shows that for newly generated, chat‑like answers, there is a relatively low threshold for assuming “appropriation” (“Zu‑Eigen‑Machen”) at least where the text does not merely summarize search results, but goes beyond them by creating its own content, giving concrete recommendations and, as in this case, partly relying on technical errors (hallucinations).

LG Berlin II: AI Answers as Search/Information Format in Trademark Law

In the case before the Regional Court of Berlin II (judgment of 1 June 2026 – 52 O 62/26), the focus was on AI‑generated texts that mention the claimant’s branded perfumes and at the same time highlight so‑called “scent twins” (“Duftzwillinge”) as cheaper alternatives, including links to the respective sellers. The AI texts described which vendors offer scent twins to the claimant’s branded perfumes and guided users via links straight to the websites of these vendors. In terms of substance, they largely stayed within what was reflected in the regular search results displayed below. The claimant regarded this as use of its trademarks by Google to promote knockoff products.

The court, however, denies that Google used the marks in its own right in the sense of trademark law (Art. 9 UMV). The starting point is the basic trademark use requirement: use only occurs where the sign is employed in the context of the user’s own commercial communication, i.e. to designate or promote that party’s own goods or services.

The court relies again on the user’s perspective: a “reasonably well‑informed and reasonably observant user” perceives the AI texts as a search and information format, not as advertising or Google’s own product communication. Such a user recognizes that the content is based on third‑party websites, that Google operates a search engine aggregating such content, and that Google itself does not sell perfumes. The court further emphasizes that the AI texts merely reflect the actual search results and that each statement in the “Übersicht mit KI” is backed by a link to the corresponding search result; there is no evidence of targeted selection or steering in favor of specific sellers.

Against this background, the court concludes that, although Google does display the marks within the AI answer, this display does not amount to trademark use by Google as part of its own commercial communication. In this context, the court therefore rejects an “appropriation” of the AI outputs.

Common Approach and Practical Takeaways

At first glance, the two decisions lead to different outcomes, but they are not necessarily contradictory. Both courts ultimately pose the same question: does the AI output still look like a search/result format that merely improves the user experience, or does it appear as an independent statement by the provider?

The answer depends mainly on the format, structure and content of the respective output. Taken together, these decisions draw an initial, soft line: it is not only “purely fictional” AI content that can trigger direct liability. Even a genuinely independent substantive processing of search results – going beyond a neutral presentation of sources – can already lead courts to treat the content as the provider’s own.

For all providers of AI‑supported search and answer systems, the concept of “appropriation” thus remains a central risk factor: the more an AI output appears as a distinct, evaluative statement and the further it moves beyond the underlying sources, the more likely it is that the provider will be treated as if it had authored the content itself.

Which concrete adjustments are advisable in any given case – whether in product design, answer logic, disclaimers or notice‑and‑action processes – depends on the specific architecture of the system. We would be pleased to support you in assessing existing AI functionalities from a legal perspective and in developing appropriate safeguards.

We are delighted about the publication of the IP Stars rankings 2026 and the renewed recognition of our expertise in intellectual property.

We have successfully maintained our firm rankings compared to last year:

• Trade mark - law firms – Tier 2
• Copyright & related rights – Tier 1 

In addition, numerous colleagues have been recognised for their outstanding work in trade mark and IP law:

Trade mark stars 2026
Dr. Dorothee Altenburg, Dr. Markus Brock, Margret Knitter, LL.M., Dr. Rembert Niebel and Dr. Oliver Stöckel

Notable practitioners 2026
Dr. Daniel Kendziur, Sandra Sophia Redeker, Dr. Magnus Hirsch and Dr. Andreas Peschel-Mehner

Rising star 2026
Lara Guyot

We warmly congratulate all recognised colleagues on these excellent results.

Our special thanks also go to our clients and business partners for their trust, close cooperation and continued support. These recognitions are the result of a joint effort.

About IP Stars
The IP Stars rankings by Managing IP are among the world’s leading directories for law firms and lawyers specialising in intellectual property. The rankings are based, among other things, on extensive research, market feedback, client references and an analysis of significant matters, and are regarded as an important benchmark for excellence in IP law.

We are delighted with this renewed confirmation of our work and will continue to do everything we can to support our clients with first-class advice in trade mark, copyright and IP law.

The Cologne Regional Court (Judgment of May 12, 2026 – 88 O 1/26) ruled against an event and cultural recommendation account for insufficient advertising disclosure on a social media platform. The court objected to video posts that were labeled as “Advertisement” in the caption but whose preview images in the profile grid - the post overview, i.e., the visual arrangement of all posts in a multi-column layout displayed when accessing a profile - contained no indication that they were advertisements. Users viewing the tile overview could not distinguish between promotional and editorial content.

The event and cultural recommendation account argued, among other things, that most users consume content through the feed or reels, that the grid itself was therefore not subject to disclosure requirements, and that the business profile already made the commercial nature of the account sufficiently apparent. The court rejected these arguments.

Thumbnail in the Grid as an Independent Commercial Practice

According to the Cologne Regional Court, the content constituted commercial communication because the account promoted third parties (including a cinema operator and a spirits manufacturer) and failed to substantiate that it had received no consideration in return. Consequently, the presumption under Section 5a(4) of the German Unfair Competition Act (UWG) applied.

A key aspect of the decision is the classification of the preview image in the grid: the thumbnail represents the post or reel and is itself part of the commercial practice. Therefore, the commercial purpose must already be disclosed at that stage; a disclosure solely in the caption of the post or video comes too late. Neither the use of a business profile nor the general expectation that media offerings are financed through advertising (which the court ultimately questioned) was sufficient, in the court’s view, to make the advertising character “immediately apparent from the circumstances.”

As a result, promotional content must be labeled in such a way that its advertising nature is clearly and unambiguously recognizable “at first glance” within the grid. The court considered labeling the thumbnail itself both possible and reasonable. In addition, other legal provisions (including Section 6 DDG and Section 22 MStV) impose transparency obligations that lead to the same outcome. Notably, in an earlier decision, the German Federal Court of Justice (BGH) had assumed that Section 22 MStV took precedence.

Conclusion and Outlook: More Disclosure, More Pressure on Platforms and Creators

If the Cologne Regional Court’s decision gains broader acceptance, it could significantly change social media advertising practices:

• Advertising disclosures in grids: Creators and recommendation accounts will need to adapt their disclosure practices. Promotional posts will likely have to be designed so that their advertising nature is clearly identifiable as advertising already on overview and search pages—particularly within the profile grid. A disclosure only in the caption or after opening the post will generally no longer be sufficient.
• Platform obligations under Article 26 DSA: Social media platforms face stricter requirements regarding their disclosure tools. Article 26 of the Digital Services Act (DSA) requires commercial communication to be clear, unambiguous, and identifiable by users in real time. These requirements are likely to increasingly extend to grids, feeds, and search views.
• Potential wave of warning letters: A new wave of cease-and-desist letters directed at creators and brands cannot be ruled out—similar to the influencer cease-and-desist letter wave seen several years ago, but this time focusing on thumbnails, grids, and overview pages.

Creators should therefore review and, where necessary, promptly adjust their profiles, thumbnails, and disclosure practices. Social media platforms would be well advised to critically reassess their implementation of Article 26 DSA and strengthen their disclosure functionalities accordingly.

Today, the new edition of the ‘Germany's Best Lawyers 2026’ rating was published by Handelsblatt in cooperation with the US publisher Best Lawyers:

The title ‘Lawyer of the Year for Intellectual Property Law’ goes to Dr. Rembert Niebel.

In the ‘Ones to watch’ section, Dr. Frithjof Roschlaub was listed in the ‘Corporate Law’ category and Dr. Thomas Hohendorf, Hannah Mugler and Dr. Christoph Wiegand. in the ‘Intellectual Property Law’ category. Hannah Mugler was also named in the ‘Data Security and Privacy Law’ category and, together with Helena Kasper, Marius Drabiniok and Dr. Elisabeth von Finckenstein, in the ‘IT Law’ category. Maria Rothämel is listed in the category ‘Public Commercial Law’, Dr. Alexander Tegge in the ‘Trusts and Succession Planning’ category and Afra Nickl in the category ‘Biotechnology Law and Life Sciences Practice’.Anna-Sophia Leitner, Maximilian König, Dr. Max-Niklas Blome and Dr. Frithjof Roschlaub are named in the category ‘Litigation’.

66 lawyers from the firm are also recommended in 24 areas of law.

• Dr. Dorothee Altenburg (Art Law, Entertainment Law, Intellectual Property Law)
• Stephan Altenburg (Employee Benefits Law, Labor and Employment Law)
• Fabian Bauer, LL.M. (Information Technology Law)
• Nikolaus Bertermann (Data Security and Privacy Law, Information Technology Law, Technology Law)
• Eva Bonacker (Corporate Law)
• Dr. Markus Brock (Intellectual Property Law)
• Dr. Oliver M. Bühr (Information Technology Law, Intellectual Property Law, Technology Law)
• Christoph Conrad (Public Law)
• Markus von Fuchs (Intellectual Property Law, Media Law)
• Dr. Christoph Haesner (Entertainment Law, Media Law)
• Dr. Thomas Hausbeck (Tax Law)
• Dr. Johann Heyde (Advertising Law, Information Technology Law)
• Dr. Magnus Hirsch (Intellectual Property Law)
• Dr. Oliver Hornung (Data Security and Privacy Law, Information Technology Law, Technology Law)
• Dr. Klaus Jankowski (Construction Law)
• Dr. Bernd Joch (Labor and Employment Law)
• Dr. Wulf Kamlah (Information Technology Law)
• Dr. Daniel Kendziur (Information Technology Law)
• René Kieselmann (Public Law, Public Private Partnership)
• Norbert Klingner (Gaming Law, Media Law, Restructuring and Insolvency Law)
• Margret Knitter (Art Law, Intellectual Property Law)
• Dr. Olaf Kreißl (Real Estate Law)
• Franziska Ladiges (Data Security and Privacy Law, Information Technology Law)
• Dr. Martin Liebernickel (Tax Law, Trusts and Succession Planning)
• Moritz Mehner (Data Security and Privacy Law, Information Technology Law)
• Dr. Daniel Meßmer (Data Security and Privacy Law, Information Technology Law)
• Alexander Möller (Labor and Employment Law)
• Dr. Stephan Morsch (Corporate Law, Mergers and Acquisitions Law)
• Dr. Rembert Niebel (Intellectual Property Law, Litigation)
• Dr. Matthias Nordmann (Information Technology Law)
• Dr. Matthias Orthwein (Data Security and Privacy Law, Information Technology Law, Technology Law)
• Dr. Mathias Pajunk (Public Private Partnership)
• Dr. Stefan Peintinger (Data Security and Privacy Law, Information Technology Law, Intellectual Property Law)
• Dr. Andreas Peschel-Mehner (Data Security and Privacy Law, Information Technology Law, Media Law, Entertainment Law)
• Dr. Kolja Petrovicki (Mergers and Acquisitions Law)
• Dr. Christoph Philipp (Family Law, Tax Law, Trusts and Succession Planning)
• Sandra Sophia Redeker (Intellectual Property Law)
• Dr. Johannes Schäufele (Data Security and Privacy Law)
• Stefan C. Schicker (Information Technology Law, Intellectual Property Law, Technology Law)
• Corinna Schneiderbauer (Information Technology Law)
• Götz Schneider-Rothhaar (Entertainment Law, Media Law)
• Dr. Tatjana Schroeder (Mergers and Acquisitions Law)
• Prof. Dr. Mathias Schwarz (Entertainment Law, Media Law)
• Martin Schweinoch (Information Technology Law)
• Dr. Gerd Seeliger (Tax Law)
• Stefan Skulesch (Tax Law)
• Dr. Oliver Stöckel (Advertising Law, Health Care Law, Intellectual Property Law, Litigation)
• Michael Wahl (Labor and Employment Law)
• Georg Wallraf (Media Law)
• Dr. Sebastian Graf von Wallwitz (Mergers and Acquisitions Law)
• Konstantin Wegner (Media Law)
• Johanna Weiß (Media Law)
• Julian Westpfahl (Information Technology Law)

The list of recommendations is compiled annually by the US specialist publisher Best Lawyers; in Germany, it is published in an exclusive cooperation with the Handelsblatt newspaper. The ‘Best Lawyers’ nominations are based on a peer-to-peer survey in which commercial lawyers are asked which competitors they recommend.

SKW Schwarz advised the shareholders of German-based SAE GmbH on the sale of a majority stake in the company to Main Capital Partners-backed Xait, a global provider of document collaboration and proposal software.

With this first add-on acquisition since the start of its partnership with Main Capital, Xait is strengthening its position within the CPQ segment.

Based in Weng, Germany, SAE provides a modular CPQ and variant management platform that enables manufacturers of complex, highly configurable products to automate configuration, pricing and quotation processes. The platform is primarily used by industrial and manufacturing companies especially in the machinery, plant engineering, industrial equipment and automotive-related industries.

Xait, headquartered in Stavanger, Norway, is a global provider of software for collaborative document editing and quotation preparation. The company serves more than 300 clients, primarily in the renewable energy, capital goods and business services sectors.

The SKW Schwarz team was led by partner Marion Anzinger and included partners Dr Stephan Morsch (both Corporate/M&A), Dr Daniel Meßmer (IT), Alexander Möller (Employment), Dr Stefan Peintinger (Data Protection) and Nicole Wolf-Thomann (Tax), counsel Eva Bonacker (M&A) and Niklas Bolten (Real Estate), as well as Raluca-Ramona Calin (Paralegal).

The European Commission has issued welcome clarifications for trademark owners in its updated Frequently Asked Questions (FAQs) on the EmpCo Directive. The guidance addresses trademarks that contain elements such as “green” or “blue” and provides greater legal certainty for businesses using such branding. The previous version of the FAQs, published on 27 November 2025, suggested that trademark owners might no longer be able to use these terms because they could be regarded as general environmental claims. As a result, many companies considered rebranding initiatives in order to reduce the risk of regulatory or enforcement action against their brands.

Updated FAQs Provide Greater Legal Certainty

Following concerns raised by businesses, including representatives of German industry, the European Commission has now published a revised version of the FAQs (dated 18 May 2026). The updated guidance makes clear that branding featuring the colours green or blue, or similar elements, is not automatically prohibited. This applies where it is unlikely that the average consumer would understand the relevant term or element, in its specific commercial context, as an environmental claim.

No General Ban on “Green” Trademarks

The revised FAQs therefore reject the interpretation that trademarks containing terms such as “green” are subject to a general or automatic prohibition. Although the FAQs are not legally binding and do not have the force of law, they provide important insight into the European Commission’s interpretation of the EmpCo Directive. As such, they are likely to be given significant consideration by national authorities and courts across the EU.

Case-by-Case Assessment Remains Necessary

At the same time, the Commission emphasises that each case must still be assessed individually. A restriction may still be justified where consumers are likely to perceive a trademark as making a general environmental claim. Businesses and their advisers should therefore continue to assess carefully how a particular trademark is likely to be understood by the relevant public.

Conclusion

The updated FAQs provide welcome clarification and greater legal certainty for trademark owners. The use of terms such as “green”, “blue”, or similar elements in trademarks and branding remains permissible and does not automatically violate the requirements of the EmpCo Directive. However, companies should continue to evaluate their branding on a case-by-case basis, as consumer perception remains the key factor in determining compliance.

The Regional Court of Bamberg (Landgericht Bamberg) has further specified the requirements for labeling of sponsored content provided by influencers on online platforms (judgment of March 11, 2026 – 1 HK O 19/25). According to the court, a clear indication of the commercial nature of influencer content, which is at least partially financed by third parties must be visible throughout the entire duration of the content. As a consequence, platform providers may be required to revise and enhance their existing advertising disclosure tools, in particular by implementing prominent and continuous notices as well as clear identification of the influencers’ commercial partners.

Dispute Concerning Existing Advertising Disclosure

The decision arose from two influencer contributions published on a video-sharing platform. The first case concerned a so-called "Finfluencer" (an influencer focusing on financial topics) who presented financial products while simultaneously promoting a broker app he personally used, including affiliate links generating commission payments. In the second case, the court addressed an influencer featuring products from an online retailer in an unboxing video, displaying the retailers logos and including tracking links. In both instances, the platform provider displayed a brief notice stating "Contains paid promotion" for approximately ten seconds at the beginning of the video. The notice subsequently disappeared with no further disclosure provided. No further labeling or clarification indicating that the companies mentioned had co-financed the posts was provided. Only abstract references to the influencers' videos being advertising-funded were found elsewhere, such as under the video itself. The platform provider also offered various means for labeling.

The plaintiff considered these measures insufficient, arguing that it misled users and filed a lawsuit against the online platform provider, citing Article 26 of the Digital Services Act (DSA).

Key Point: Real-Time Disclosure Required

The court ruled in favor of the plaintiff. While the platform provider had indeed provided influencers with a function to declare whether their content constitutes commercial communication, as required by Article 26(2) sentence 1 DSA, the court found that the disclosure displayed within the video was inadequate.

According to Article 26(2) sentence 2 DSA, platform providers must ensure that other users can clearly and unequivocally identify in real-time - through highlighted labels - that the content provided by the influencer represents or contains commercial communication. From the court's perspective, "in real-time" means that the notice must be visible throughout at least the predominant portion of the duration of the video. A brief notice at the beginning is insufficient. Furthermore, the labeling must be visually prominent. The court considered factors such as the relationship to the promotional statement, size, color, and placement of the notice, but emphasized that the exact requirements must be assessed based on the circumstances of each individual case.

The primary responsibility for labeling lies with the influencer. In this regard, the court deemed it insufficient for one of the influencers to merely provide an abstract reference to advertising content beneath the video. Such a reference does not clearly indicate the connection to the specific related commercial content. However, if the influencer utilizes the function under Article 26(2) sentence 1 DSA and labels their content as advertising or content with advertising, the court also holds the platform provider accountable.

Additionally, the cooperation partner of the influencer - i.e., the actual advertiser - must be disclosed in accordance with Section 6(1) No. 2 of the German Digital Service Act (DDG). Here, the influencer is initially responsible. However, without the need to consider a potential liability exemption under Article 6(1) DSA, injunction claims under German law, particularly the Act Against Unfair Competition (UWG), could also be asserted against the platform provider.

Conclusion and Practical Guidance

If the interpretation of the Regional Court of Bamberg prevails, platform providers will have no choice but to ensure that influencer posts are prominently labeled as advertising or partially advertising for their entire duration. This extensive obligation raises practical concerns regarding posts containing advertising only intermittently, e.g. when influencers insert their own advertising segments into otherwise editorial content. A clear assignment of the notice to the advertising content would be impossible in such cases. Moreover, the influencer would be compelled to provide continuous notices even for non-advertising content. Whether this is reasonable remains questionable. Additionally, whether the liability exemption under Article 6(1) DSA is indeed circumvented, as assumed by the court, requires further clarification. Nevertheless, platform providers are advised to proactively revise their tools, despite the unresolved questions and the lack of finality of the ruling.

After discussing liability for misleading statements made by an AI chatbot in our last AI Flash, we would like to continue providing you with regular legal insights on AI-related developments.

In today’s AI Flash, we would like to take a closer look at high-risk AI systems in light of recent developments at the European level. On 19 May 2026, the European Commission launched a consultation process and published three draft guidelines on the classification of high-risk AI systems. For the first time, these drafts provide detailed clarification on what is arguably the most consequential question under the AI Act (AIA): When does an AI system qualify as high-risk—and when does it not?

Given the complexity of the topic, particularly considering the different categories of high-risk AI systems, we will divide our comments on the draft guidelines into several AI Flash publications. This contribution is intended to provide an initial overview, enabling us to address specific aspects in greater detail in future editions.

Timeline: What the AI Omnibus Has Changed

Before addressing the substantive classification question, it is important to understand the applicable timeline. With the provisional trilogue agreement on the so-called “Digital Omnibus on AI” of 7 May 2026, the European Parliament and the Council substantially postponed the application deadlines for high-risk AI systems:

• AI systems serving as safety components in regulated products under Annex I of the AI Act (including AI used in medical devices, lifts, and toys)
  Postponement: 2 August 2027 → 2 August 2028 (+12 months)
• Standalone high-risk AI systems under Annex III of the AI Act (including AI used in human resources and critical infrastructure)
  Postponement: 2 August 2026 → 2 December 2027 (+16 months)

Although the trilogue agreement has not yet been formally adopted and the original deadlines technically remain applicable until adoption, formal enactment within the relevant timeframe is considered highly likely.

Against this backdrop, the newly published draft guidelines constitute an important tool for companies. They provide an opportunity to use the additional preparation time in a structured and substantive manner and, for the first time on an official basis, assess whether and to what extent AI systems may be subject to high-risk classification in the future.

The Two Classification Pathways under Article 6 AI Act

Article 6 AI Act provides for two independent pathways leading to a high-risk classification.

Annex I (Product Safety)
An AI system qualifies as high-risk if it is itself a regulated product or serves as a safety component of such a product falling within specific EU harmonisation legislation and the product is subject to a third-party conformity assessment.

This pathway is particularly relevant for AI used in medical devices, toys, vehicles, and lifts.

The Commission appears to interpret the key concept of a “safety component” rather broadly. Even a system not expressly intended to perform a safety function may qualify as a safety component if its failure or malfunction could create a health or safety risk. Purely efficiency-, comfort-, or performance-related functions without safety relevance do not fall within this category.

Annex III (Use Case-Based Classification)
For most businesses, the practically more relevant pathway is Annex III of the AI Act. Here, the legislator identifies eight areas of application (with further subdivisions) in which the use of AI systems is generally considered high-risk:

• Biometrics
• Critical infrastructure
• Education and vocational training
• Employment and worker management
• Access to essential private and public services
• Law enforcement
• Migration, asylum and border control
• Administration of justice and democratic processes

This category will be the primary focus of the present contribution.

Intended Purpose as the Key to Classification
A central theme throughout the draft guidelines is the concept of the intended purpose of an AI system.

The decisive factor is how the intended purpose is presented externally in instructions for use, technical documentation, marketing materials, and other statements made by the provider.

The Commission makes it clear that providers cannot avoid a high-risk classification through disclaimers or exclusions in their terms of use if the system’s design, marketing, or overall positioning suggests a high-risk use case. Any limitation of the intended purpose must be communicated clearly, specifically, and consistently across all materials.

HR Example: Where Does the High-Risk Zone Begin?

Annex III, Section 4 of the AI Act expressly covers AI systems used in the fields of employment, worker management, and access to self-employment.

Specifically, this includes:

• “AI systems intended to be used for the recruitment or selection of natural persons, in particular to place targeted job advertisements, analyse or filter applications, and evaluate candidates.”
• “AI systems intended to be used for decisions affecting the terms of employment relationships, promotions and termination of contractual employment relationships, for task allocation based on individual behaviour or personal traits or characteristics, or for monitoring and evaluating the performance and behaviour of persons in such relationships.”

According to the draft guidelines, the specific use case and, subsequently, the degree to which the system influences a human decision are of particular importance.

The mere existence of human oversight is not sufficient to avoid classification as a high-risk AI system. Given the significant practical relevance of HR applications, we intend to address this topic in greater detail in a dedicated future AI Flash.

The Article 6(3) Filter: An Exception for Annex III Systems

For AI systems that fall within one of the Annex III areas but whose functions are comparatively limited, Article 6(3) AI Act provides a filter that may prevent classification as a high-risk system.

This filter applies exclusively to Annex III systems and not to product safety-related AI systems under Annex I.

The Commission explicitly emphasises that the conditions for applying the filter must be interpreted narrowly, as Article 6(3) constitutes an exception to rules primarily designed to protect fundamental rights.

The filter applies only where one of the following criteria is met:

• Narrow Procedural Task: The system performs only a clearly limited procedural task, such as sorting application documents into predefined categories. Systems that evaluate data or make qualitative assessments do not fall within this category.
• Improvement of a Completed Human Activity: The system improves the result of a previously completed human action but neither replaces nor revises it. Example: Highlighting inconsistencies in a decision already made by a human.
• Detection of Decision-Making Patterns without Influence: The system identifies patterns or deviations in decision-making processes but neither influences nor replaces human judgment.
• Preparatory Task with Limited Influence on Outcomes: The system prepares a decision without substantively steering it, for example by providing relevant guidelines without directing the outcome of the decision.

The operational key question therefore becomes: Does the system merely structure a process, or does it influence human judgment?

Systems that sort, convert, or detect duplicates may fall within the filter. Systems that rank, assess, score, or make clear recommendations will generally be classified as high-risk.

Furthermore, the filter is entirely unavailable where the AI system performs profiling, i.e., automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person.

This limitation is highly relevant in practice because many AI tools used in HR inherently involve profiling functionalities. Thorough assessment is therefore essential.

Providers seeking to rely on the filter must, prior to placing the system on the market, prepare a written self-assessment documenting:

• the intended purpose;
• the basis for the high-risk classification under Article 6(2) AI Act;
• the applicable filter condition; and
• the reasons why no profiling is involved.

The system must subsequently be registered in an EU database.

A Potential Pitfall for AI Deployers

As a first step, it is the provider of the AI system who is responsible for defining its intended purpose and, consequently, determining its risk classification.

From the deployer’s perspective, however, Article 25(1) AI Act is particularly important. It provides, among other things, that a deployer may effectively become a provider where the intended purpose of an AI system that was not originally classified as high-risk and has already been placed on the market or put into service is modified in such a way that the AI system subsequently becomes a high-risk AI system within the meaning of Article 6 AI Act.

Put simply:
A company that uses a generative AI system—which will often not qualify as high-risk—for candidate selection purposes may alter the system’s risk classification and simultaneously assume a different regulatory role.

Practical Recommendation: Participate in the Consultation

The draft guidelines are open for public consultation until 23 June 2026. Formal adoption by the Commission is expected thereafter, although no specific timeline has yet been announced. Under the current framework, the guidelines are not legally binding; authoritative interpretation remains the responsibility of the Court of Justice of the European Union (CJEU). Nevertheless, they represent the clearest indication to date of how the Commission—and, in practice, national market surveillance authorities—are likely to approach the classification question.

The additional preparation time resulting from the AI Omnibus should therefore not be viewed as a reason to delay action, but rather as an opportunity for structured preparation. The key classification question—Is my system high-risk, and if so, does the Article 6(3) filter apply?—should be addressed, or at least prepared, as early as possible.

Our experience shows that delayed engagement with these issues, or a late change of course, often results in considerable additional effort. We would therefore be pleased to support you with an initial assessment of your AI systems and with establishing a practical framework for documenting and routinely reviewing your compliance documentation.

The obligation to install photovoltaic (PV) systems on buildings now affects virtually every owner of residential property in Germany, as it no longer applies only to newly constructed buildings but also to existing buildings.

The following article therefore provides an initial overview of the PV installation obligation. For an assessment of whether the PV installation obligation applies to your project, or for questions regarding your specific case, please contact your SKW Schwarz advisor.

Where Is the PV Installation Obligation Regulated by Law?

The central federal law governing energy requirements for buildings is the German Building Energy Act (Gebäudeenergiegesetz – GEG), which entered into force on November 1, 2020. The GEG itself does not establish a nationwide obligation to install PV systems. Instead, Section 9a GEG authorizes the federal states (Länder) to adopt more extensive regulations.

Section 9a GEG therefore provides:

“The federal states may, by state law, impose more extensive requirements regarding the generation and use of electricity, heat, and cooling from renewable energy sources in connection with buildings, as well as further requirements or restrictions concerning direct electric heating systems.”

Whether a PV installation obligation exists therefore depends on the specific state regulations in the federal state where your project is to be carried out.

Overview of the PV Installation Obligations in the German Federal States

The following table (as of May 17, 2026) provides an overview of whether a PV installation obligation exists in each federal state and the legal provisions on which it is based:

Due to the large number of state-specific regulations, this table can only provide a general overview. A legal assessment of each individual case remains necessary. Even in federal states where no statutory state-level PV obligation exists, an obligation may exceptionally arise from a local development plan or municipal regulations.

Exceptions and Exemptions from the PV Installation Obligation – The Example of Lower Saxony

Even if a PV installation obligation generally exists in your federal state, this does not mean that it always applies. The following examples from the Lower Saxony Building Code (NBauO) illustrate this.

1. Cases in Which No PV Obligation Exists Under Section 32a(2) NBauO

According to the wording of Section 32a(2) NBauO, the obligation to equip 50% of the roof area with a solar energy installation for electricity generation applies only if the newly constructed or renovated roof area amounts to at least 50 m².

As an additional requirement, Section 32a(2) No. 3 NBauO requires “replacement of the roof covering down to the waterproofing layer.” If a roof is re-covered without such a “major roof renovation,” no PV obligation is likely to arise.

Accordingly, it is always necessary to examine and document whether the project reaches the relevant size threshold and scope. Similar considerations apply in other federal states with PV obligations.

2. Statutory Exceptions to the PV Obligation Under Section 32a(4) NBauO

Section 32a(4) sentence 1 NBauO provides several exceptions to the PV installation obligation. It should be noted that the provision uses the term “insofar as,” meaning that the obligation may be reduced only partially rather than waived entirely.

a) The PV Obligation Conflicts with Other Public-Law Requirements (Section 32a(4) Sentence 1 No. 1 NBauO)

Conflicts with other public-law requirements are likely to be exceptional and may arise, for example, from provisions in a development plan (e.g., requirements regarding green roofs) or from heritage protection regulations. Comparable provisions exist in other federal states.

b) The PV Obligation Is Technically Impossible (Section 32a(4) Sentence 1 No. 2 NBauO)

Technical impossibility may exist, for example, where the roof or building structure lacks sufficient load-bearing capacity, structural stability, or connection possibilities, or where there are no sufficiently large flat roof surfaces due to numerous small roof sections.

Buildings with predominantly north-, northwest-, or northeast-facing roofs, or roofs subject to significant shading, may also fall under this exception. Comparable provisions exist in other federal states.

c) The PV Obligation Is Not Economically Reasonable (Section 32a(4) Sentence 1 No. 3 NBauO)

In Lower Saxony, a PV obligation is generally considered economically unreasonable if an optimized solar energy installation would not pay for itself within 20 years, meaning that the investment costs could not be offset through revenues or savings (in the case of self-consumption systems) during that period, or if the building has an expected remaining useful life of less than 20 years.

The obligation is also considered economically unreasonable if the requirement to install a solar energy system would render the construction project economically unfeasible. Other federal states may apply different standards.

d) Solar Thermal Systems Have Been or Will Be Installed on the Roof Area (Section 32a(4) Sentence 1 No. 4 NBauO)

The roof area required for such a solar thermal installation may be deducted proportionally from the available roof area and the minimum occupancy requirement.

If the remaining available roof area is less than 50 m², or if 50% of the roof area is already occupied, the PV installation obligation no longer applies.

e) Exception Under Section 32a(4) Sentence 2 NBauO

Under this provision, the obligations under Section 32a(2) No. 3 and Section 32a(3) Sentence 2 NBauO may also be waived where the construction measure is urgently required due to special external circumstances, particularly to remedy unforeseen damage caused by environmental events.

For example, this exception may apply where a roof has sustained damage (e.g., as a result of environmental events) that necessitates involuntary roof replacement within the meaning of Section 32a(2) No. 3 NBauO.

Conclusion

As PV installation obligations now exist in almost all German federal states, they should be taken into account at an early stage when constructing new buildings and when planning roof renovations, vertical extensions, or alterations to existing buildings.

Even where property owners are convinced that no obligation applies in their specific case, thorough documentation of the relevant facts is strongly recommended.

We would be pleased to advise you on whether your construction project is subject to the PV installation obligation or whether a statutory exception may apply in your particular circumstances.

SKW Schwarz has been recognized in the latest "Best Law Firms 2026" ranking by the business magazine Capital in the practice areas of Media and Press Law, Copyright Law, and IT, Telecommunications and Data Protection.

The ranking is compiled annually by Capital in cooperation with the independent market research institute Statista. It is based on a nationwide survey of lawyers, in-house counsel, and other market participants.

The survey focuses on identifying the law firms that are perceived and recommended by the market as particularly competent. The results are based on the assessments of competing law firms as well as in-house counsel, reflecting the professional reputation of the firms recognized in the ranking.

For SKW Schwarz, this recognition represents a valuable endorsement from the market. It highlights the firm's strength in the fields of media, technology, and intellectual property, as well as its commitment to supporting clients in addressing complex legal and business challenges through in-depth advice and practical, business-oriented solutions.

SKW Schwarz would like to thank everyone who recommended the firm as part of the survey. Special thanks go to the teams of the recognized practice groups for their continued dedication and outstanding work.

Automakers are turning their cars into rolling media hubs – and German regulators have already set important precedents: in 2024, the state media authorities classified the in‑car entertainment systems of several automakers as user interfaces, and the “Tesla Media Player” is additionally treated as a media platform. This makes clear that access to and discoverability of media services in cars are subject to media regulation.

The German Interstate Media Treaty (MStV) defines media platforms as services that combine broadcasting, broadcast-like or journalistic-editorial telemedia into a comprehensive offering determined by the provider (e.g. the OEM curates and controls an overall line‑up of third‑party radio, streaming and video apps such as Spotify, YouTube). 

User interfaces, on the other hand, are the textual or acoustic overview of offerings or content on media platforms.

Providers of media platforms are required to 

• notify the state media authorities one month before going live. 
• ensure non-discriminatory access by guaranteeing equal access conditions for all content providers. 
• Changes to media offerings may not be made without the consent of the content providers. 
• Platforms that reach a certain minimum size must meet certain transparency requirements. For example, media platform providers must be transparent to their users about the principles according to which offerings are granted access to their platform. This includes, among other things, information about the criteria used to sort, arrange, and present content on their platform.

If an in‑car entertainment system qualifies as a user interface, the following requirements must generally be met:

• No preference for own offers or offers of third parties against payment 
• Sorting of apps in the offering must be easily customizable by users on a permanent basis
• Broadcasting must be accessible at the first selection level with one click
• Publicly financed and public value broadcasting must be easy to find (if included on the platform)

In other words: the way you design and organize your in‑car media offering is no longer just a UX decision, it is a regulated activity. OEMs should therefore assess now whether their current and planned infotainment systems qualify as a media platform and/or user interface under the MStV, and if so, implement compliant product, UX and contractual setups early on and take the necessary legal compliance steps – for example, fulfilling the notification obligation vis‑à‑vis the competent state media authority. Doing this proactively reduces regulatory risk, avoids costly redesigns after launch and gives legal certainty for future, media‑rich vehicle generations.

Relying on a default judgment issued by the Regional Court of Düsseldorf, Fender claims copyright protection for the body shape of the “Stratocaster” and is sending cease-and-desist letters to numerous guitar manufacturers and dealers using Strat-style shapes in Germany. SKW Schwarz is representing Maybach Guitars in this dispute. The case illustrates how far copyright protection for iconic product shapes may actually extend.

In a default judgment dated December 22, 2025 (Case No. 14c O 64/25), the Regional Court of Düsseldorf ruled solely on the basis of Fender’s submissions and without any opposing arguments that the body shape of the Fender “Stratocaster” constituted a copyright-protected work of applied art. Fender is now using this decision as the basis for a huge wave of cease-and-desist actions against numerous manufacturers of guitars with Strat-style shapes — including Maybach Guitars.

What Fender Is Demanding

• Cessation of the manufacture, distribution, and promotion of certain guitar models,
• Execution of a cease-and-desist declaration subject to contractual penalties,
• Destruction and recall of the affected guitars,
• Comprehensive disclosure of information, as well as damages and reimbursement of legal fees.

For affected manufacturers, far more than just a single product line is at stake.

The Counterposition: Iconic, Yes — Monopoly, No

Maybach Guitars is defending itself with the support of an international legal team, including SKW Schwarz (Dr. Magnus Hirsch). The response focuses, among other things, on:

• the limits of relying on a default judgment against an entire industry,
• the decades-long tolerated use of the Strat shape by hundreds of manufacturers worldwide,
• international precedents in which the Strat body shape was classified as generic, as well as
• specific design differences between Maybach guitars and the examples cited by Fender, and also
• the protection of everyday items, so-called works of applied art, under copyright law, which is virtually unlimited in duration, alongside design protection, which is limited to 25 years.

What Does This Mean for the Industry?

The Stratocaster case demonstrates that copyright protection for iconic shapes might be possible — but not unlimited. Companies receiving cease-and-desist letters should neither panic nor sign anything prematurely, but instead carefully examine their legal options. This is especially relevant because not only could Fender assert similar claims regarding other models, but other well-known guitar manufacturers may also follow Fender’s example.

Our partner and attorney Dr. Magnus Hirsch will be pleased to assist you with any questions or advisory needs.

With the administrative regulations “VV Approval Criteria for Social Preservation Areas” (Official Gazette Berlin No. 16/2026), which came into force on April 18, 2026, the State of Berlin has once again significantly tightened its regulatory practice in so-called Milieuschutz areas (social preservation areas). This time, the focus is on so-called “temporary housing” (“Wohnen auf Zeit”). For investors, project developers, and property owners, the question of permissible residential use in social preservation areas is therefore becoming increasingly important.

According to Section 2.10 of the new administrative regulations, temporary furnished short-term rentals in Berlin’s currently 82 Milieuschutz areas will no longer be regarded as regular residential use in the future. District authorities are instructed to generally classify such models as a change of use requiring approval and to regularly deny such approvals.

Indicators for assessing whether a change of use exists in individual cases include in particular:

• duration of the rental agreement, 
• furnishing, 
• use or intended use/housing need of the tenant, 
• pre-formulated tenant-side limitation clauses in the rental agreement, 
• short-term ordinary termination rights, 
• extension options after expiry of the fixed term, 
• rental amount, 
• registration with local authorities, 
• additional services (e.g., laundry service, gym access). 

This particularly affects “temporary housing” concepts, which until now were often classified as standard residential use. The Senate Department now takes the view that the temporary rental or subletting of previously permanently rented residential space undermines the protective purpose of social preservation regulations.

However, whether this restrictive administrative practice will withstand legal scrutiny remains questionable. In particular, the blanket classification of temporary residential use as a change of use requiring approval will likely require review by the administrative courts.

Under the administrative regulations, only two categories are generally considered eligible for approval:

• so-called genuine fixed-term tenancy agreements pursuant to Section 575 German Civil Code (BGB), 
• temporary subletting of a natural person’s primary or secondary residence. 

A valid fixed-term tenancy agreement requires that a legally recognized reason for the limitation is communicated in writing at the time the contract is concluded. These include:

• future owner occupation by the landlord or relatives, 
• planned substantial construction works or modernization measures, 
• rental to a person obliged to provide services. 

The latter includes cases where, after expiry of the fixed term, the apartment is intended to be provided to an employee on the basis of an employment or service agreement.

For institutional landlords, serviced apartment concepts, and investor-driven rental models, these exceptions are unlikely to apply in practice.

The Senate Department justifies this step by citing the increasing spread of furnished short-term rentals on the Berlin housing market. According to the Senate, the proportion of such housing offers has increased significantly in recent years. At the same time, achievable rents in this segment have risen considerably. From the perspective of the State of Berlin, this development withdraws housing from the regular rental market in the long term and thereby jeopardizes the objectives of social preservation law.

The administrative regulations are therefore part of an overall trend toward increasing regulation of the Berlin housing market. For investors and project developers, this means in particular:

• increased approval risks for flex-living and serviced-living concepts, 
• greater uncertainty regarding rental strategies, 
• increased review requirements during due diligence processes, 
• potential impacts on profitability calculations and usage concepts. 

Particularly in the context of forward deals, restructuring of existing portfolios, or mixed-use developments, closer examination will now be required to determine whether planned rental models in Milieuschutz areas are capable of approval.

The new administrative regulations mark another tightening of Berlin’s Milieuschutz regime. Furnished temporary housing concepts in particular are increasingly becoming the focus of district authorities. As a result, the regulatory complexity surrounding the acquisition, development, and management of residential real estate in Berlin is increasing significantly for investors, property owners, and project developers.

Given the partly questionable legal basis of this new administrative practice, it is also expected that the administrative courts will soon address the issue of approval requirements for temporary rental models.

SKW Schwarz (litigation counsel: Dr. Oliver Stöckel) obtained an important landmark decision from the Higher Regional Court of Hamburg for the listed pharmaceutical and medical device manufacturer Sedana Medical on the advertising of the interaction between medical devices and pharmaceutical products. The judgment, which was already handed down on 6 November 2025 (docket no. 3 U 74/23), is final.

What was the case about?

The action was brought against two companies, a medical device manufacturer and its exclusive distributor. It concerned a medical device for the administration of volatile anaesthetics (anaesthetic gases) for so‑called “inhaled sedation”. In inhaled sedation, the patient is calmed or immobilised by mixing the gaseous pharmaceutical product into the air inhaled by the patient, for example during mechanical ventilation in an intensive care unit (ICU).

Volatile anaesthetics are prescription‑only pharmaceutical products. With the exception of one preparation of the claimant, which is also approved for the sedation of patients in combination with its special application medical device, the anaesthetic gases available on the market are approved exclusively for anaesthesia (e.g. in the operating theatre) and not for inhaled sedation.

The proceedings concerned numerous advertising claims which primarily emphasised the medical advantages of inhaled sedation with volatile anaesthetics and the defendants’ medical device. Using the defendants’ medical device, the volatile anaesthetics are administered in a manner that deviates from the marketing authorisation, so that the patient does not fall into full anaesthesia but is merely sedated. In anaesthesia, contrary to sedation, the organism is numbed with central suppression of pain and consciousness; the primary purpose is the complete elimination of sensory perception, e.g. to enable the performance of surgery.

Because the mode of administration of the anaesthetic gases for sedation purposes with the defendants’ medical device, which was highlighted as particularly advantageous in the advertising, is not covered by their marketing authorisation, this use constitutes a so‑called off‑label use. The use of pharmaceutical products outside their approved indications is not generally prohibited in Germany. However, it may not be advertised (Sec. 3a of the German Healthcare Advertising Act). In addition, the off‑label use of pharmaceutical products is generally associated with increased risks, because there is no marketing authorisation study for the off‑label use. Therefore, special liability risks as well as duties of care and information apply to physicians and hospitals when using pharmaceutical products outside their approved indications. It is therefore important for physicians and hospitals to know when a particular pharmaceutical product use constitutes an off‑label use.

Which fundamental legal questions were in dispute?

At its core, the dispute concerned two fundamental legal questions which have so far remained largely unresolved in case law:

1. Does advertising the medical advantages of a pharmaceutical product which arise precisely due to the specific mode of administration of an application medical device (here: administration of volatile anaesthetics for sedation rather than for anaesthesia) in the advertising for this application medical device constitute co‑advertising of the pharmaceutical products used? If so, this constitutes advertising of an off‑label use of the administered pharmaceutical products prohibited under Sec. 3a of the Healthcare Advertising Act, provided that these are at least identifiable in the advertising (product‑related advertising).
2. Does it violate the prohibition on misleading advertising under Sec. 3 of the German Act against Unfair Competition in conjunction with Art. 7(c) MDR and Sec. 3 of the Healthcare Advertising Act if advertising for the intended use of a medical device (here: administration of volatile anaesthetics for sedation purposes) does not disclose that such intended use of the medical device results in an off‑label use of the administered pharmaceutical products?

How did the court decide?

The Higher Regional Court of Hamburg answered both fundamental questions in the affirmative in favour of the claimant represented by SKW Schwarz and awarded the action against the distributor in full. The court prohibited the distributor, inter alia, from advertising its medical device at all for inhaled sedation with volatile anaesthetics. In addition, numerous advertising claims aimed at promoting sales of the medical device by emphasising the medical advantages of inhaled sedation with volatile anaesthetics were prohibited.

With regard to the manufacturer, however, the court took the view that the distributor’s advertising statements could, for the most part, not be attributed to the manufacturer, because it could not be proven that the manufacturer had initiated them. The manufacturer therefore only bears liability for its own advertising statements, not for those of the distributor.

What did the court say specifically about the fundamental questions raised?

I. Advertising the medical device for inhaled sedation also constitutes prohibited advertising for an off‑label use of the administered pharmaceutical products

The court agreed with the claimant that the advertising for the application medical device also constitutes advertising for the pharmaceutical products used. The contested advertising directly and purposefully addressed the substance groups to be administered, isoflurane, desflurane and sevoflurane, by highlighting their medical advantages specifically in inhaled sedation. Because the pharmaceutical products advertised are at least identifiable for the targeted professional audience, this constitutes product‑related pharmaceutical product advertising within the meaning of Sec. 1(1) No. 1 of the Healthcare Advertising Act. In this context, the court primarily relied on the case law of the Court of Justice of the European Union (CJEU) on Art. 86(1) of Directive 2001/83, including CJEU, d.d. 8 November 2027 – C-143/06 paras. 20-39 – Gintec; CJEU, d.d. 27 February 2025 – C-517/23 paras. 32, 33 – Apothekerkammer Nordrhein/Doc Morris NV; CJEU, d.d. 22 December 2022 – C-530/20 – EUROAPOTIEKA; and CJEU, d.d. 5 May 2011 – C-316/09 – MSD/Merckle. The decisive factor is the objective suitability to promote sales.

In the present case, the court assumed this sales promotion intention with respect to the pharmaceutical products even though the defendants do not themselves market them. The court followed the argument put forward by SKW Schwarz that the objective of the advertising message – to induce the targeted professional audience to purchase the defendants’ medical device – necessarily presupposed that the audience first decided to procure the volatile anaesthetics to be administered, primarily in place of intravenously administered pharmaceutical products. Without such a primary decision to procure volatile anaesthetics for inhaled (instead of intravenous) sedation, the medical device would not be needed at all, so that the decision to procure the pharmaceutical products is a prerequisite for the sales success of the medical device.

Therefore, the advertising message that inhaled sedation is preferable to intravenous sedation is a core argument of the contested advertising materials. The medical arguments placed at the centre of the advertising, however, all relate to the advantages of the pharmaceutical products and not to the mode of operation of the medical device. The advertising by the defendants therefore also pursues the aim of promoting the prescription, dispensing, sale or consumption of these pharmaceutical products.

The court held that, for the assumption of product‑related pharmaceutical product advertising, it is irrelevant whether individual preparations are recognisable (which, in the view of the court, was in any case the situation in some of the contested advertising videos). The concept of “advertising for pharmaceutical products” within the meaning of Art. 86(1) of Directive 2001/83 relating to pharmaceutical products for human use is not to be understood as covering only advertising for a specific pharmaceutical product (CJEU, loc. cit., para. 38 – EUROAPTIEKA). Advertising for a group of pharmaceutical products or even for the entire range of products may also be product‑related (Federal Court of Justice, PharmR 2025, 681 para. 21 – PAYBACK). In the present case, the advertising concerned three specific, by name stated substance groups (isoflurane, sevoflurane, desflurane) which represent readily identifiable pharmaceutical products for the targeted professional audience.

According to the Higher Regional Court of Hamburg, determining for which specific indications a pharmaceutical product is authorised constitutes a question of law and not of fact. The issue is the interpretation of an administrative act, namely the marketing authorisation, by corresponding application of Sec. 133, 157 of the German Civil Code. Such interpretation leads in the present case, as the claimant explained in detail, to the conclusion that the volatile anaesthetics advertised are only authorised for anaesthesia and not for sedation.

Because the advertised use of the pharmaceutical products – inhaled sedation – is not covered by their marketing authorisation, the contested advertising therefore constitutes a violation of Sec. 3a of the Healthcare Advertising Act.

II. Misleading advertising due to failure to disclose the off‑label use

The court further considered it misleading to advertise the use of the medical device for inhaled sedation without disclosing that such treatment involves the particular risks associated with the off‑label use of the relevant pharmaceutical products. In this regard, the advertising gave rise to the misconceptions asserted by the claimant concerning the scope of the examination of the treatment’s efficacy and safety by the authorities in the context of the marketing authorisation procedure. In fact, the advertised treatment, as it is not covered by the marketing authorisation, is not sufficiently safeguarded by the authorities in this sense.

III. Infringement of Art. 7(c) MDR

Finally, according to the court, the advertising also infringes Art. 7(c) MDR. The intended use of the medical device for inhaled sedation gives rise to risks associated with the off‑label use of the administered pharmaceutical products. This constitutes a risk requiring disclosure, which falls under Art. 7(c) MDR both according to the rationale of the provision and its wording. The advertising creates the false impression among the targeted audience that they can use the medical device as intended for inhaled sedation without thereby incurring the particular risks of off‑label use of the pharmaceutical products to be administered.

What does the judgment mean in practice for advertising medical devices and pharmaceutical products?

The decision clarifies several fundamental issues in healthcare advertising where a treatment involves the interaction between medical devices and pharmaceutical products.

If the interaction between medical devices and pharmaceutical products is advertised, it must be assessed as a whole and, in case of doubt, constitutes advertising both for the medical device and for the pharmaceutical product. In particular, where the promotion of a medical device is conducted by emphasising the advantages of the pharmaceutical products intended to form part of the treatment, the advertising of the medical device will as a rule also encompass co‑advertising of the pharmaceutical products. The court did not follow the defendants’ attempt to separate the two elements, even though they were combined in the advertising.

Where pharmaceutical products also play a role in the intended use of medical devices in the envisaged treatment – for example in the case of application medical devices such as in this case – it must always be examined whether the advertising of the medical device also involves promoting the sales of the pharmaceutical products. If this is the case, the pharmaceutical product advertising contained in the combined advertising must comply with the statutory requirements for pharmaceutical product advertising. This is particularly important where prescription‑only pharmaceutical products are involved, because in such cases, among other things, the prohibition on advertising to the general public under Sec. 10(1) of the Healthcare Advertising Act applies – with the consequence that “combined” advertising for a medical device and pharmaceutical product must then be restricted to those HCPs listed in Sec. 10(1) of the Healthcare Advertising Act. If the intended use of the medical device, as here, results in an off‑label use of the pharmaceutical product, no advertising for such use may be undertaken at all due to Sec. 3a of the Healthcare Advertising Act.

Furthermore, failure to disclose what the intended use of the medical device means at the level of the pharmaceutical products can render the advertising for the medical device impermissible as misleading, if circumstances requiring disclosure – such as, for example, an off‑label use of the pharmaceutical products applied when the medical device is used as intended – are not disclosed (Sec. 3 of the Healthcare Advertising Act, Art. 7(c) MDR).

Laughed at, shared, and served with a warning 

When Carlsen Verlag clarified in the summer of 2025 that it would not leave the rampant AI memes about children’s book character Conni unchallenged and reserved the right to take legal action, a lively debate erupted about the limits of internet humor.  While the matter did not escalate to court, it highlighted an issue that has since occupied social media teams and their legal departments: meme marketing operates on multiple legal levels simultaneously, and rights holders' tolerance in a commercial context is significantly lower than in a private one.

For brands, agencies, and creatives intentionally using memes as a communication tool, this is not merely an academic concern. Those looking to quickly and affordably generate reach often rely on viral templates, recognizable figures, or pop culture imagery— and in doing so navigate through at least four areas of law simultaneuously.

Copyright Law: Third-party templates are not free material

When creating a meme, one typically uses third-party images — film stills, book covers, photographs, cartoons. All of these are protected by copyright. To reproduce and publicly share such content, one generally needs a license or a relevant exception.

This is where Section 51a of the German Copyright Act (UrhG) comes into play. Following the implementation of the DSM Directive in 2021, this section serves as the central exception for caricature, parody, and pastiche. While it may sound like a free pass, it is not. The extent of the term "pastiche" has long been disputed and remains a complex issue. On April 14, 2026, the European Court of Justice (ECJ) provided the first binding EU definition in case C-590/23 (Pelham/Metall auf Metall): A pastiche exists when a work resembles an existing one but has noticeable differences and engages in a recognizable artistic or creative dialogue with the original. All three criteria must be met, which can often be challenging to demonstrate in specific cases.

This ruling serves as an important guideline for meme marketing and simultaneously acts as a warning. While it strengthens the exception, it does not create an automatic right. A meme that merely uses the recognition of another work to convey an entirely unrelated message without engaging with the original's content is unlikely to meet the requirements for an artistic dialogue. This risk is heightened in a commercial advertising context, where the courts tend to assess commercial uses more strictly than purely communicative ones.

Personality Rights: Even if the image fits, the person can sue

Even if a meme is legally sound in terms of copyright, the individual depicted can still take action. The right to one’s own image protects identifiable persons from unauthorized uses of their likeness — especially in advertising, where the already narrow exceptions typically do not apply. Particularly sensitive: celebrities, whose face and image have independent commercial value.  Transforming a reaction meme featuring an actor gazing in disbelief into an advertisement risks not only a cease-and-desist order for image rights but also accusations of misleading endorsement –, suggesting that the person supports the product.

Trademark law and unfair competition: When the joke comes at the competitor's expense

If a meme includes a third-party logo, brand color, or distinctive design of a competitor, claims for injunctions and damages due to reputation exploitation or defamation may arise. The Act Against Unfair Competition (UWG) complements the protective framework: even humorous formats are not exempt from fair competition law. Anyone who disparages or belittles a competitor crosses the line. Furthermore, if a meme is designed in such a way that it creates the impression that a third party or company is behind the message, there is a risk of being accused of misleading representation. Humor does not provide immunity under the UWG.

The special case of AI: No protection, but also no immunity

A significant portion of the brand memes circulating online today is AI-generated. What many do not realize is that AI output does not enjoy its own copyright protection in Germany, as it lacks human authorship. This may seem advantageous, but it is not. AI does not shield users from conflicts with third-party rights. If the tool produces protected stylistic elements, brand graphics, or recognizable personalities, the same limitations apply as with manual design. Moreover, the ECJ's requirements for a recognizable artistic dialogue are unlikely to be met by an AI-generated meme that simply places a well-known character in a new context. AI is not a compliance shortcut; it merely provides a new avenue into familiar liability traps.

Conclusion: Yes, one can be sued for humor

Meme marketing is not a legal anomaly but rather an intensification of classic intellectual property and communication risks. Section 51a of the UrhG provides some leeway, and the ECJ ruling from April 2026 now offers a binding European definition of the term "pastiche." However, it also demonstrates that the exception requires a recognizable artistic dialogue, which is not easily established in a commercial context. Personality rights, trademark law, and the UWG apply regardless and can derail a campaign that is otherwise sound from a copyright perspective.

For brands, agencies, and legal teams, this means: no unreflective adoption of viral templates, heightened caution with identifiable individuals and third-party logos, and a quick rights check before publication. Spontaneity is the essence of meme culture, but the legal risks can be significantly mitigated with manageable effort.

SKW Schwarz has been nominated for the "Law Firm of the Year" award in the AI & TMT category at the Chambers Germany Awards 2026. This recognition positions the firm among the leading entities in the German market for technology-driven consulting and digital regulation.

The nomination highlights the strategic development of the IT & Digital Business practice over recent years. The firm increasingly supports clients in complex digitalization and transformation projects, particularly at the intersection of technology, regulation, and business models-such as in the context of platform strategies, AI applications, and the implementation of new EU digital regulations like the Data Act, AI Act, and Cyber Resilience Act.

"This nomination also confirms our strategic focus over the past years," says Dr. Daniel Meßmer, head of the IT & Digital Business practice. "We place great importance on linking technical understanding with regulatory depth in our consulting, translating new EU directives like the Data Act, AI Act, and Cyber Resilience Act into concrete solutions for products, processes, and contracts. The recognition of this strategic combination in the market is particularly validating for us."

The Chambers Germany Awards annually honor law firms and attorneys who demonstrate exceptional market presence, client work, and innovative capacity.

One click—and the meeting writes itself. Microsoft Teams, Zoom, Webex—almost every video conferencing platform today offers an integrated transcription feature. The result is a comprehensive transcript, automatically generated with speaker attribution and timestamps. What is technically convenient is legally more complex than many companies assume. This is because the transcription of video conferences involves two areas of law with different requirements. While data protection law is obvious, criminal law must also be considered when dealing with transcription.

This article outlines the relevant legal risks, summarizes how supervisory authorities have already responded, and sets out the legal conditions under which transcriptions can be used.

What happens technically during transcription—and why it matters legally

Before diving into the legal details, it is worth taking a brief look at how modern transcription systems work. Contrary to a common assumption, automated speech recognition does not mean that an AI simply “listens” and writes down what is said in real time.

In practice, the acoustic signal is first captured digitally, divided into very short time segments, and converted into data streams. These segments are analyzed, typically transformed into characteristic acoustic features, and then processed using statistical or neural models to reconstruct text. Not every sound is translated directly into a word; rather, spoken language is converted into coherent text. Fillers such as “uh” and “hmm” are removed, and incomplete sentences are completed. To enable this processing, the audio signal must at least temporarily be stored, buffered, or held in a structured format.

This intermediate storage typically goes beyond purely transient RAM processing in the sense of mere “pass-through.” Even so-called live or real-time transcriptions temporarily store, segment, or preprocess audio data. This applies even if no permanently retrievable audio file is ultimately intended to be stored.

This technical aspect is legally decisive. A hypothetical live transcript without any form of storage or intermediate storage would be assessed differently from the technical standard used by common transcription tools. Anyone who overlooks or underestimates this distinction risks making incorrect assumptions about whether and to what extent processing—particularly of personal data—takes place, and thus applying the wrong legal standard.

Data protection law: personal data, legal bases, and the pitfalls of consent

Transcriptions generally process personal data within the meaning of Article 4(2) GDPR. This includes not only explicit identifiers such as names or email addresses, but also the content of spoken contributions. If transcription tools also assign or identify speakers, the voice itself may be processed as personal data.

As soon as transcription software assigns voices to individuals, the question arises whether biometric data within the meaning of Article 4(14) GDPR is being processed and whether the stricter requirements of Article 9 GDPR apply. The Bavarian Data Protection Authority (BayLDA) takes a differentiated view:

“The processing of voice in the context of transcription generally does not constitute processing of special categories of personal data under Article 9 GDPR. Although the voice is biometric data within the meaning of Article 4(14) GDPR, it is typically not used for the unique identification of a natural person in transcription. Speaker separation is generally carried out using so-called voice embeddings—numerical vectors—and external contextual information such as the user account or active microphone input, without requiring identification of the speaker.” (15th Activity Report 2025, p. 56)

The key factor is therefore whether the voice is actually used to identify a person. If not, no special categories of personal data are processed under Article 9 GDPR. If it is, stricter data protection requirements apply.

For the processing of non-sensitive personal data in transcription, the following legal bases may be considered: consent under Article 6(1)(a) GDPR, performance of a contract under (b), and legitimate interests under (f).

At first glance, consent appears to be the most obvious solution. In practice, however, it often fails in corporate contexts. Under Article 7 GDPR, consent must be freely given, informed, specific, and unambiguous. In employment relationships, voluntariness is frequently questioned, especially if the employer mandates or effectively expects transcription. Simply remaining in a meeting after a pop-up appears and clicking “agree” does not constitute informed consent under data protection law. Moreover, such provider pop-ups generally do not meet the information requirements of Article 13 GDPR. In addition, consent can be withdrawn at any time. If a participant objects during a meeting, transcription must stop, which significantly undermines its documentation purpose.

The key question: Is it possible without explicit consent?

Performance of a contract under Article 6(1)(b) GDPR is not applicable in most internal meetings. Transcription is generally not strictly necessary for fulfilling an employment contract. Given the structural issues with consent, the practically relevant question arises: Can legitimate interest under Article 6(1)(f) GDPR serve as a legal basis for transcribing internal meetings?

The answer is: yes—but not universally; only under specific conditions.

Article 6(1)(f) GDPR requires a three-step test: first, a legitimate interest of the controller; second, necessity of processing to pursue that interest; and third, that the data subject’s interests do not override it.

For internal meetings without sensitive content—such as project check-ins, team coordination, or internal status updates—this test can be satisfied if properly structured. The legitimate interest in efficient documentation and traceable records is economically recognized. Less intrusive means with comparable effectiveness are hardly available. Manual minutes lack both the completeness and efficiency of automated transcription. On the other side of the balancing test is the participants’ personality rights, particularly their right to the spoken word. This weight can be significantly reduced if processing is limited to clearly defined documentation purposes, no profiling or behavioral monitoring takes place, and participants are clearly informed in advance and have a genuine option not to participate or to join in an alternative format.

However, processing based on Article 6(1)(f) GDPR is generally not appropriate for individual HR meetings, disciplinary hearings, job interviews, or meetings where special categories of personal data are discussed. In such cases, the interests of the data subjects prevail.

Criminal law: Section 201 German Criminal Code and the confidentiality of speech

In addition to data protection law, Section 201 of the German Criminal Code (StGB) must be observed. This provision protects the confidentiality of non-public spoken words and criminalizes their unauthorized recording.

At first glance, one might assume that transcription does not constitute a “recording on a medium.” However, this assumption is technically inaccurate and legally risky. Because most standard tools buffer audio signals, spoken words are technically captured, meaning the scope of Section 201(1) No. 1 StGB is generally triggered.

The requirements for valid consent are significantly lower under criminal law than under data protection law. According to prevailing opinion—and as explicitly stated by the Baden-Württemberg Data Protection Authority (LfDI BW, 40th Activity Report 2024, p. 135)—implicit or implied consent is sufficient for criminal law purposes. However, this only applies if individuals are transparently informed beforehand and then knowingly participate in the meeting.

A decision by the German Federal Constitutional Court dated July 9, 2025 (1 BvR 975/25) is also noteworthy. The Court implicitly confirmed that the term “unauthorized” in Section 201 StGB must be interpreted in light of the entire legal system. What is permissible under data protection law cannot be prohibited under criminal law. Thus, a valid data protection legal basis can also serve as a justification under criminal law. However, this requires that the data protection basis is actually valid—if consent is invalid due to lack of transparency or voluntariness, if transcription is not necessary for contractual purposes, if the balancing test is flawed, or if privacy notices fail to specify legitimate interests, the justification falls away and criminal liability may arise.

What supervisory authorities say

German data protection authorities have increasingly addressed this issue due to its practical relevance, though not uniformly:

• The Bavarian Data Protection Authority (BayLDA), in its 2025 report, recognizes that transcription can be based on Article 6(1)(f) GDPR for documenting meeting results, emphasizing purpose limitation and proportionality. 
• The Baden-Württemberg authority (LfDI BW) also recognizes legitimate interest but highlights the criminal law dimension and recommends informing participants in the meeting invitation. 
• The Saxon Data Protection Authority takes a more restrictive view, generally rejecting Article 6(1)(f) GDPR for call recordings due to lack of necessity and overriding confidentiality interests. 

Thus, authorities are not aligned. The BayLDA’s 2025 position provides the most recent and business-friendly guidance—but it is not a free pass and requires a genuine balancing test.

Practical approaches

To use transcription as legally safely as possible, companies should consider the following minimum standards:

• Inform participants in advance about the transcription, its purpose, duration, and recipients—ideally in the calendar invitation. 
• Document the balancing test if relying on legitimate interest. 
• Conclude a data processing agreement with the tool provider (Article 28 GDPR). 
• Record transcription as a separate processing activity (Article 30 GDPR). 
• Define appropriate retention periods and delete data when no longer needed. 
• Conduct a data protection impact assessment where necessary (Article 35 GDPR) and at least document a preliminary threshold assessment. 
• Involve the works council where applicable (§ 87(1)(6) BetrVG). 
• Differentiate between meeting types—HR and highly confidential meetings should not be transcribed. 

AI-based transcription is not a legal no-go—but neither is it a legal “no brainer”. A “standard installation” without legal preparation can create avoidable risks. However, with careful planning, transparency, and clear boundaries, companies can benefit from efficiency gains while significantly reducing data protection and criminal law risks. Recent guidance shows that legitimate interest is no longer merely theoretical, but a partially recognized legal basis.

We would be happy to advise you on the specific requirements in your company and develop a tailored transcription strategy together.