Case Law

The Second Civil Senate held a departed managing director liable for an investment contract signed only after his removal, because he had built up the harmful scheme during his term of office and continued to play a key role in it afterwards (§ 826 BGB). What matters is not the formal period of appointment but the continuing responsibility for the danger once created. Practical takeaway: Directors stepping down should document and cut off liability exposure from processes already set in motion — and review D&O "tail coverage", because removal from office alone offers no protection.

The OLG treated the misleading chatbot statements (fabricated medical specialist titles) as an unfair commercial practice under § 5(1), (2) no. 3 UWG and attributed them to the operator — careful selection of training data is irrelevant, since hallucination is inherent in the generative process. An appeal on points of law (Revision) to the BGH has been admitted; the judgment is not final and binding. Practical takeaway: Anyone operating a generative chatbot with external effect should ground its outputs in a verified data set and block sensitive statements (titles, prices, availabilities) — a disclaimer does not replace attribution.

The court treated the output of memorized texts as reproduction (§ 16 UrhG) and making available to the public (§ 19a UrhG); the TDM exception (§ 44b UrhG) does not apply because the content is stored permanently. Responsibility lies with the model operator. An appeal has been announced; not final and binding. Practical takeaway: Anyone deploying generative AI should contractually clarify licensing and liability questions regarding training and output content with the provider — responsibility cannot simply be shifted onto users across the board.

The OLG confirmed the permissibility of dataset creation (§§ 44b, 60d UrhG) but denied that the reservation of use was machine-readable for 2021, leaving open whether natural language would suffice today. An appeal on points of law (Revision) to the BGH has been admitted and filed. Practical takeaway: Rightholders should set opt-out reservations in technically machine-readable form; for AI providers, the legal position on training remains in flux until the BGH decision.

As the employer had no access to the data accruing at the provider, the court denied a co-determination right under § 87(1) no. 6 BetrVG; the employer's introduction of AI as a technical device, by contrast, is subject to co-determination. Practical takeaway: Anyone rolling out AI tools across the business should involve the works council and govern usage in an AI policy or works agreement.

An inventor within the meaning of § 37 PatG can only be a human being; the use of an AI to find the technical teaching does not preclude patentability, as long as there is a substantial human contribution. Practical takeaway: In AI-assisted research and development, document the human inventive contribution and name it correctly in the application.

The BGH adheres to the basic rule that expulsion without compensation is contrary to public policy (§ 138 BGB), but permits call options on pure management shareholdings that carry no independent weight. Pricing and compensation questions do not affect the validity of the clause but are assessed separately. Practical takeaway: Leaver and call-option clauses in PE/VC and management-participation agreements can be drafted with legal certainty where the shareholding is cleanly coupled to the corporate office.

What is decisive is the content of the contract, not how it is actually carried out. Live calls with a genuine opportunity for interaction remain valid — programs that are predominantly pre-recorded, by contrast, are void. Practical takeaway: A reclaim is worthwhile only after a precise analysis of the format; a blanket "contract void" no longer holds.

Structured online mentoring programs with monitoring of learning success require authorization. Where authorization is lacking, the contract is void from the outset under § 7 FernUSG and amounts paid are fully recoverable. Practical takeaway: B2B customers, too, can invoke this protective statute.

The mere calculation of a score value already falls under the prohibition on automated individual decisions where third parties decisively rely on it. Practical takeaway: Anyone deploying AI-assisted assessment systems needs a legal basis, transparency about the logic involved, and a right of intervention for the data subject — a mandatory topic for every AI implementation.

Concrete misuse of the data is not required; the BGH considers around EUR 100 per affected person to be reasonable. Practical takeaway: Data protection incidents scale into substantial risks through mass claims — sound data management and incident processes become a liability question.