I’ve been meaning to write about the Abmahnwelle in Germany, but since I haven’t researched it in depth and there are new examples every day, I don’t get round to it. I did mention it in an earlier entry.
Abmahnen means to send someone a letter before action. For instance, lawyers can do this to people whose Impressum is inadequate. The rules for the Impressum, the legal notice on a weblog that allows the person in charge to be contacted, are similar throughout the EU, I believe, but it’s only in Germany that legislation enables such a wide range of people to sue and collect fees. It’s a source of income for some lawyers to sue on formalities, because they can collect their fees. It’s particularly ridiculous that in order to sue someone for a formal defect in an Impressum, you have to be able to contact them, and the sole purpose of the Impressum is to enable you to contact the webmaster – so the mere fact you are able to take action against them proves the Impressum was doing its job.
Fortunately Larko has written on the topic in English. He says it’s a combination of legislation and some German courts. I had thought it was just the legislation. Here on the Impressum (note the link to the Abmahnwelle blog, in German):
The justice system is also frequently abused by lawyers who choose to sue bloggers and forums as a matter of routine although they could just as well write to the blogger or forum administrator and politely ask them to remove an offensive comment or post. Rather than negotiating in a civilized manner, they promptly sue because they can then charge their fat fees from the person who was sued even if the dispute itself is settled. This sort of dog law approach is so common in Germany that there is a word for it: Abmahnwelle. And believe it or not, a special blog was recently kicked off with the sole purpose of covering lawsuites against bloggers.
Incidentally, I hadn’t encountered the term dog law, but apparently it was coined by Jeremy Bentham with reference to judge-made criminal law:
It is the judges (as we have seen) that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. They won’t tell a man beforehand what it is he should not do – they won’t so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it.
But these German lawyers could not behave in this way if the legislation did not support them.
This term dog law was used in German to refer to the Abmahnwelle by Professor Maximilian Herberger, I learn.
It would be fundamentally unjust to punish someone for violation of the law, if this person did not have a fair chance to know the law beforehand. This would be, as Jeremy Bentham has put it in criticism of his contemporary law, a kind of “dog law”, the point of comparison being that the dog learns about his failures only by being punished. He has (in this view) no chance to know the applicable rules before.
I still think dog law is a bit of a misnomer for the whole phenomenon, since it seems to result from legislation, even if judges and lawyers exploit it in unjust ways.
Every Dog’s Legal Guide here.
I picked up this discussion in RA-Blog, where one of the commentators had strong objections to Larko’s use of the word sue for out-of-court pursuit. I notice I used the word sue above myself loosely. When I wrote that German law allows a wide range of people to sue, that was correct, because even if they have to write a letter before action first, they could still sue afterwards. But it was strictly incorrect to say that German lawyers earn money from suing. They earn money from sending letters before action. I suppose this might be misleading for someone who doesn’t know the German legal system.
Incidentally, the commenter tells Larko that he can find the correct translation of Abmahnung in a dictionary. Obviously an optimist.