Andrea Wlcek: Hi Carsten, could you please introduce yourself briefly to our readers? Dr. Carsten UlbrichtCarsten Ulbricht: My name is Carsten Ulbricht. I'm a lawyer and a partner of the Stuttgart law firm Diem & Partner. I specialized in legal matters in Internet and social media as early as 2007 and for several years now, I have provided advice on numerous start-ups and companies in this area, in particular on the topics of copyright, trademark and competition, and of course data protection law. AW: You write a great deal about legal consequences on your blog. In your opinion, what is the greatest mistake which can be made by start-ups? CU: When advising on start-ups there is a different need for legal advice depending on the stage at which the young company finds itself. Especially at the beginning, it's a matter of developing the respective business model in accordance with the law; this concerns in particular the development of any terms of use/general terms and conditions of business and of the data protection statement which is often required. I believe that appropriate measures are essential in order to set the company and the business model on a solid basis. Something which is neglected again and again by start-ups is also the protection of the company's own brand, under which the respective Internet platform is often also marketed. Especially in this age of Internet, it has become very easy to register “third-party” domains and/or to misuse them with the name of a start-up or the platform. Therefore, advice should be provided to the company urgently and at a very early point in time in order to protect the name under which the company or the platform wishes to appear, by entering an appropriate brand. AW: To what extent do legal framework conditions play a role anyway? CU: Social media changes communication on the Internet in a very fundamental way. Through social media, users have become able to publish all types of content. They often do this even without an appropriate idea of the legal framework conditions. Since that numerous business models are based on these user-generated contents. With relevant models, a few important, particular aspects should be observed with regard to the liability of the platform operator. Not only should start-ups, however, which make use of specific business models in the social web, deal with legal implications. Any company which becomes active in social media should become familiar with certain legal framework conditions in the area of social media marketing. This involves the observance of several aspects under telecommunication, copyright, competition and data protection law. Regardless of whether companies themselves become active in the social media, however, companies in the widest range of sectors and size now deal with the communication phenomenon of Web 2.0. In fact, we currently also advise many companies on the introduction of a social media directive which aims to provide their own employees with guidelines on communication in social media. Also in this case, some legal framework conditions (under labor law) must be observed. AW: Are the greatest mistakes of young start-up entrepreneurs also the most common? CU: There is no simple answer to that question. The legal questions which face a start-up in particular and should be observed in “normal” corporate activities on the Internet certainly differ. During the course of a start-up it is often a matter of the rather specific case of accepting investors. With the borrowing of venture capital or the integration of other investors, through which we have already provided support for various start-ups, it is important that also the founders' interests are adequately reflected in the participation agreement. AW: From a purely legal point of view, how should a start-up proceed in order to avoid any problems? CU: Firstly the legal compliance of the business model should be clarified and the necessary contractual bases (conditions of use/general terms and conditions of business and data protection) should be created, and integrated on the respective Internet platform. As already stated, it should also be clarified to what extent the respective company or platform name can be used. If there are no legal obstacles in the way, relative trademark rights should be secured. AW: From what field did the start-ups receive the most complaints last year? CU: In most cases, there are actually no legal disputes, in other words no complaints. Matters are mostly handled at the level of warning letters. These are, in general, letters from solicitors who assert claims against the infringement of rights in the name of their respective clients. If these can be proved, the required declaration of discontinuance, in general, should also be handed over. As a rule, however, in such matters we are in a position to beat down the financial claims considerably. In some cases, however, also unjustified injunctive relief and/or compensation claims are also asserted in the warning letter. In such situations, companies should not give in, but put up a fight - if necessary with the help of a solicitor. With regard to content, claims are generally made under copyright, trademark and competition law. AW: Have you ever had a start-up as a client which ran into problems through sharing and the posting of contents, due to the disregard of copyright law? CU: Yes, that is actually not that uncommon. The Internet and social media open up totally new opportunities of sharing and conveying contents and/or using them for one's own purposes. That does not always correspond to the guidelines under copyright law, which seems partially somewhat outdated but are nevertheless applicable. In the meantime, however, design options (also confirmed by law) have been created, which makes it also possible to handle user-generated contents in compliance with the law. Especially if the business model of a company is based on the use of content protected by copyright, the business model should be appropriately secured. AW: Do you have a few simple, practical tips for our readers? CU: It is very difficult to sum up appropriate practical tips in a couple of sentences. However, I do try to take up appropriate issues regularly in my blog on the topic of “Web 2.0, social media and Law”, and also provide my readers (which also include many start-ups) with specific, practical tips on the subject of many issues. With regard to dealing with user-generated contents, we should in any case point out the so-called “notice and take down” principle. This says that operators of an Internet platform are only liable for infringements of third-party rights on the platform if they have gained knowledge of this. There is no express legal obligation to make a prior check of third-party contents. These legal principles, which are also recognized in Europe and America, make many new Web 2.0 business models possible and can thus be readily given as practical tips. AW: On your blog, we could also read a story of a young man who was accused by his company as he had “lifted” the followers of the company accounts. What tips would you give to start-ups so that this issue doesn't become a problem? CU: This issue does not really pose a problem for start-ups. In actual fact, totally new (legal) problems are created through the use of social media. We provide advice to numerous companies who are concerned with recognizing relevant problems early on and reaching a sensible solution proactively. With start-ups, these difficulties will generally not even arise. Naturally, however, with regard to company accounts in social networks such as Facebook, Twitter, etc., start-ups should also be advised to ensure that the company account also “belongs” to the company and cannot be withdrawn when an employee leaves. AW: At this year's CeBIT, the main topic is all about “Managing Trust”. What trends and challenges do you think companies will be faced with in the coming years? CU: A loss of trust is evident in many sectors. In politics, banks or industry in general, current developments show that long-standing systems and structures can no longer work as they are. In particular, politics, for example, is suffering from a huge loss of trust. Completely new opportunities are being offered, namely by the Internet, for managing or restoring trust. Trust is heavily based on transparency and on relationships, which are more or less strong. For this reason I am convinced that in the coming years, we will also see some trend-setting developments, which can be promoted through the Internet. Without wanting to over-strain the topic of “social media”, which is still overheated, I presume that a level of transparency and relative relationships can be built up through the Internet and especially the social media. In this respect, companies should at least concern themselves with this topic. In the support of relative projects in companies of the most varied sectors, we notice that the companies also contemplate or have taken initial steps in this matter. Currently, many companies are concerned at the moment with creating the necessary media competence on a broad basis and co-coordinating their own Internet and social media activities with the already mentioned social media guidelines. I believe this approach to be correct and important in order to maintain existing trust or restore any which has been lost. AW: Many thanks for this conversation :)
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