TMT Newsletter | August 2026

Outlook

02.09.26

Decision

EGC: Action against a decision not designating a service provider as a gatekeeper for its web browser under Article 3 DMA (in particular, on the classification of core platform services as an important gateway for business users under Article 3(1)(b), (4) and (5) DMA (T-357/24)).

03.09.26

Opinion

CJEU-AG Szpunar: Are Belgian provisions that require providers of electronic communications services and authorize mobile network operators to retain traffic and location data, including to prevent fraud, compatible with Article 15(1) ePrivacy Directive in conjunction with Articles 7, 8 and 52(1) CFR (C-661/24)?

Decision

CJEU: On the copyright protectability of social-media posts (Article 2(a) InfoSoc Directive) and the scope of the exception for quotations in relation to non-commercial uses (Article 5(3)(c) InfoSoc Directive; C-598/24).

Decision

German Federal Court of Justice: Does copying and using a rhythm fragment from a sound recording require the phonogram producer's permission? The FCJ is expected to address the recently specified requirements of the "pastiche" exception under Article 5(3)(k) InfoSoc Directive (following CJEU, case C-590/23 ("Pelham II"); I ZR 74/22 ("Metall auf Metall V")).

Decision

German Federal Court of Justice: Does the retransmission of broadcast programs via a satellite reception system to the residents of a retirement home constitute a "communication to the public" within the meaning of Article 3(1) InfoSoc Directive and Secs. 87(1) No. 1, 20, 20b German Copyright Act (following CJEU, case C-127/24; I ZR 34/23 and I ZR 35/23)?

Hearing

German Federal Court of Justice: Does the reproduction (download) of a photograph when creating a dataset to train generative AI require the author's consent, or do one or more exceptions for text and data mining apply (Secs. 16(1), 44b, 60d German Copyright Act; I ZR 281/25)?

10.09.26

Decision

CJEU: Does Article 105(4) subpara. 1 EECC Directive give providers of publicly available electronic communications services a unilateral right to amend the contract, or does it constitute a special termination right for end-users that requires a separate right to amend (C-669/24, following a referral by the Higher Regional Court of Düsseldorf)?

17.09.26

Hearing

German Federal Court of Justice: Must an online gambling operator who offered games without authorisation pay back the stakes lost by a player (Sec. 812(1) sentence 1 German Civil Code; following CJEU case C-440/23; I ZR 216/25)?

Decision

German Federal Court of Justice: Does forwarding private chat messages initially shared among employees to an employer violate Article 6 GDPR, or does the GDPR not apply due to the exemption for private uses, Article 2(2)(c) GDPR (I ZR 256/25)?

News

CJEU-AG – Press publishers' dual entitlement to private-copying remuneration

According to AG Szpunar, press publishers can claim private-copying remuneration as holders of the exclusive reproduction right (Article 5(2)(a) and (b) InfoSoc Directive in conjunction with Article 16 DSM Directive). This applies even where national law already entitles the same press publishers to remuneration in their capacity as publishers. "Rightholders" under Article 5 InfoSoc Directive are, according to AG Szpunar, not limited to the persons listed in Article 2 InfoSoc Directive. Rather, anyone to whom national law grants the exclusive reproduction right (including by assignment) is covered by the term. However, even where dual entitlement exists, the total amount must reflect the harm actually suffered (Opinion C-441/25).

EUCOM – Online platform's account settings preliminarily found to breach DSA protection of minors

On the platform, content posted by minors with "public" accounts can be seen by anyone, including people without an account. "Older minors'" content is recommended to other users via the feed. The Commission finds that this raises the risk of unwanted contact, cyberbullying, and content staying online permanently (Article 28(1) DSA). Even on "private" accounts, minors' information is easy to find. The Commission recommends adjusting default settings on minors' "public" accounts to limit who can see their content, blocking access from outside the platform, and not recommending minors' content via the feed. The operator can now respond to the preliminary findings (press release of 24.07.26, not yet final and binding).

Higher Regional Court of Bamberg – DSA report button and terms of service

A reporting button for unlawful content on an online hosting service labelled "report a problem with this product" and requiring user registration does not meet the requirement that such mechanisms must be "easy to access and user-friendly" (Article 16(1) DSA). The access to the mechanism must be clearly recognisable. The label suggests that the button only refers to the characteristics of the product itself. Requiring registration raises the barrier to submitting a notice. In their terms of service, service providers must – where the main parameters in their recommender systems are weighted differently – at least explain how the provider determines the weighting of parameters (Article 27(2) DSA). Information on content moderation and the internal complaint-handling system must be easily accessible (Article 14(1) DSA; 3 UKI 13/25 e, not yet final and binding).

Higher Regional Court of Frankfurt – Fine against service provider reduced due to lack of intent

The service provider did not comply with a court order to remove untrue user posts for approximately two weeks and was therefore ordered to pay a fine. However, the provider did not act intentionally: there was no structural organisational fault or conduct driven by tactical considerations. The impact of the posts remaining available was also less significant than assumed by the lower court (16 W 32/26).

Regional Court of Munich I – Copyright infringements by AI-powered music generator  

The court finds several copyright infringements arising from the operation of the music generator. It asserts international jurisdiction based on Sec. 131(2) VGG and assumes – without hearing expert evidence on US law – a violation of US copyright law through reproductions not justified by the fair use doctrine (17 U.S.C. § 107). The court also finds several violations of German copyright law: The "memorisation" of works within the AI model – also assumed without hearing expert evidence – constitutes reproductions relevant under copyright law (Article 2(a) InfoSoc Directive; Sec. 16 German Copyright Act). The court infers such "memorisation" from the reproducibility in the output. The fact that up to 176 prompts were required for such reproductions does not, in the court's view, affect this outcome. While the general TDM exception (Article 4 DSM Directive; Sec. 44b German Copyright Act) covers the compilation of training data, the court considers it inapplicable to such "memorisation" within the model. As regards the output itself, the right of making available to the public (Article 3(2) InfoSoc Directive, Sec. 19a German Copyright Act) is not engaged, but the court finds an infringement of the right of communication to the public (Article 3(1) InfoSoc Directive, Sec. 15(2) German Copyright Act). The court also assumes further reproductions in cache memory and on edge servers. The judgment does not address that the underlying questions are contested as a matter of EU law and that some are currently pending before the CJEU (C-376/24, Like Company; 42 O 763/25, not yet final and binding).

German Federal Cartel Office – Following binding commitments, service provider must adjust consent pop-up windows for personalised advertising

Third-party providers were required to obtain additional consent from users for the use of data for personalised advertising. This was done via a pop-up window specified by the service provider, which did not apply to the service provider's own offerings. The FCO has now declared the service provider's commitments binding. The service provider will design pop-up windows to be neutral in content, wording and layout, and will align them between its own and third-party apps. Third-party providers can inform users about the significance of personalised advertising and combine the consent prompt with data protection consent. The service provider has four months to implement the changes; the commitments are binding for seven years (press release of 17.08.26).

Federal Commissioner for Data Protection and Freedom of Information (BfDI) – Recommendations on legal recognition of cookie managers

With "cookie banners", users set their cookie preferences individually for each website. "Cookie managers" allow them to set these preferences across websites. The BfDI recommends the use of cookie managers, which it reviews and certifies as the competent authority under the German Consent Ordinance (EinwV). It calls for "consent signals" from cookie managers to become binding on website operators, eliminating the need for additional cookie banners. The BfDI also recommends including rules on cookie managers in the ongoing legislative process for the EU Digital Omnibus (press release of 13.08.26).