Newsletter September 2008
PERSONAL DATA
PRIVACY
Use of Hidden Cameras to Detect Employee-fraud
A number of recent cases by the Central Appeals
Tribunal has shed new light on the question to what extent a
employer can monitor employees - without prior notification - with
hidden cameras in order to detect fraudulent activities.
read more
INTERNET AND
E-COMMERCE
Free Ringtones Prove Expensive Affair for Buyer and
Seller
Wizz Mobile, a provider of ringtones and wallpapers, among other
things, has paid a high price for its offering of free ringtones.
On 4 September 2008 the Dutch Consumers' Association announced
that it has imposed a penalty of EUR 76,000 plus an incremental
penalty payment of EUR 250 per work day on the company. According
to the report of the Dutch Consumer Authority that accompanied this
decision, Wizz Mobile has violated a great number of duties to
provide information.
read more
INTELLECTUAL
PROPERTY
Who Has the Best Ventilating Bed?
No urgent interest for claim to cease advertisement; and misleading
advertisement does not always have to be misleading.
read more
Court in Preliminary Relief Proceedings: BUMA Not
Allowed to Grant Licenses for Online Music Use Abroad
Licenses for online music use remain a complicated
affair. In a dispute between the Dutch association for music
copyright BUMA and its English sister organization, the Court
recently decided that BUMA is not allowed to grant world wide
licenses for the online use of music.
read more
A New (and Old) View on Exhaustion?
In an interesting judgment of 11 July 2008, the
Dutch Supreme Court has asked questions to the European Court of
Justice regarding the exhaustion of trademark rights. After the
judgments in the cases of Davidoff and Van Doren the relevant case
law seemed to have crystallized rather firmly, but now the question
has been raised whether this case law applies at all if the
relevant products are not imported from outside the EEA, but are
marketed within the EEA for the first time.
read more
INFORMATION
TECHNOLOGY
The Use of Open Source Software is Bound by Conditions
Too
In an interesting judgment in the US it has been
ruled that acting in violation of an open source license agreement
may be considered to be a copyright infringement.
read more
EMPLOYMENT
The Staff Entity and Transfer of Undertaking
If an undertaking transfers its activities or any
part thereof, the Directive on the transfer of undertakings may
apply. In that case an employee enters the employment of the
acquiring undertaking by operation of law while retaining his
employment conditions. Does this also apply to employees of a staff
entity, who do not have an employment agreement with the
undertaking that is transferring the activities?
read more
No Advice Requested to Works Council
Results in Manifestly Unreasonable Decision
In the event that an undertaking plans to take an important
decision, for example, of a business management nature, it is
legally required to present the intention thereto to the Works
Council (Ondernemingsraad) for advice. This right to
advise follows from the Work Councils Act. Does this also apply if
the entrepreneur takes a less far-reaching decision than the
decision presented to the Works Council, on which the Works Council
has given a negative advice? This question was answered by the
Court of Appeal of Amsterdam in its judgment of 27 June 2008.
read more
CORPORATE
LITIGATION
Stricter Standard for Liability of Directors Towards
Shareholders
In its judgment of 20 June 2008, the Dutch Supreme Court has ruled
that personal liability of a director towards an individual
shareholder must be assessed on the basis of the criterion of
"serious culpability" of Section 2:9 of the Dutch Civil
Code ("BW") rather than on the basis of the more
general and broader standard of the unlawful act (Section 6:162 of
the BW). This means that the Supreme Court uses a stricter standard
than the one that applied before.
read more