20 Aug 2020 | IP-Update

Facebook reads German – who else?

According to the Appeal Court Munich (ZUM-RD 2020, 364), it is possible to serve court documents onto Facebook in Ireland in German language. Can a general rule be derived from this decision which is based on the language skills present at Facebook in Ireland? This article tries to shed some light. 

1. Starting point of the Appeal Court Munich 

The decision centers around the question whether a preliminary injunction that issued in Germany, may be served onto Facebook in German, or Facebook could require a foreign language translation (English). According to the Senate, it was necessary to confirm that the language of the court decision is a language that the addressee understands. In case of legal persons, not only the skills of officers and authorized personnel were relevant, the Senate holds, but any available skills within the company that the management level can reasonably make use of.

That way, the Appeal Court Munich significantly extends options to serve court papers and documents in German language onto international players, specifically in the social media business. 

In casu, the Appeal Court Munich relied on Facebook’s offering of the service in Germany in German, including all contractual provisions, terms and conditions, which, partly, made German laws binding and accepted venue in Germany (in consumer matters). Facebook was not successful to argue that no one in the legal department in Ireland read German in a way to handle (court) documents properly without external advice and consult, or to defend the company comprehensively in German. 

While the Court shared the position that the addressee must be able to fully comprehend the relevance and scope of the claims raised abroad in order to make possible a sound defense, it is also stressed that a proper balancing of interests between the parties was required. A company the size of Facebook’s was, according to the Court, presumed to have personnel to comprehensively handle legal dispute in German language. When a company undertakes to fulfill a contract in a specific language, there was a rebuttable presumption that service of (court) documents can also take place in that language

2. Case groups of document service abroad in German

The Munich decision shows that there is no definite answer to the question, when a translation is required and for which type of foreign company. The balancing of interests is a case-by-case analysis and the claimant arguing that no translation was required has to adduce proper evidence to this end

The two conclusions drawn by the Appeal Court Munich go beyond what has been discussed in and accepted in previous cases. The Appeal Court Frankfurt/Main found back in 2015 (GRUR-RR 21015, 183) that not only legally trained personnel adept of the language in question must be present but also that their involvement in the specific matter was to be expected a natural step, when, e.g., they had been involved in this matter beforehand, including out of court. 

Moreover, it was reasonable to conclude that such documents reached the managing level or the legal department. If there are appropriate language skills within these organizational groups, no translation of the German document was required. 

According to the fresh decision handed down by the Appeal Court Munich, the latter is no longer a requirement. In fact, the addressee is obliged to make use of other internal sources. This prevents random or erratic results but stretches the limits of what language a company has to accept well beyond past limits. 

Even though, as a general rule and for good reason, the Federal Supreme Court is reluctant to accept presumptions and prima-facie evidence regarding foreign language skills, the Munich decision offers some solid fact-based conclusion, and is seems reasonable to say that international addressees must not act inconsistently with previous or related conduct and business.  Finally, this result gives full effect to the purpose of the applicable statutory provisions, at least of those valid in the EU, namely, to reduce the need for translations to the extent possible.

Author: Dr. Rudolf Böckenholt