The term “Creeping” in law: Definition and significance
The term Creeping refers in the legal context to a gradual conduct in which a party slowly alters or expands its position, rights, or obligations in such a way that this development is difficult to detect or prove. This phenomenon occurs in various areas of law, notably in company law, capital markets law, as well as in data protection and employment law. Creeping is not an explicitly regulated legal concept under German law, but is often used to describe certain strategic approaches that can have legally relevant effects.
Creeping in company and capital markets law
Creeping Takeover
One of the best-known manifestations is the “Creeping Takeover”, also known as a “gradual takeover”. Here, the acquisition of corporate shares does not occur by one-time takeover bid, but through a large number of smaller transactions, each remaining beneath any reporting thresholds. The aim is to gain control over a company without triggering formal takeover procedures or attracting public attention.
Legal framework
In Germany, in particular the Securities Acquisition and Takeover Act (WpÜG) regulates the disclosure obligations when acquiring significant stakes in listed companies. Acquirers must publish notifications of voting rights from certain thresholds. However, a systematic, gradual acquisition of interests (e.g. always just below 3%) can lead to a takeover being practically completed without triggering transparency obligations.
Impacts and limitations
Creeping takeovers are considered a grey area and, depending on their design, may be legally contestable, for example in cases of violation of reporting obligations under the WpÜG or when evasion of takeover rules occurs. The Federal Financial Supervisory Authority (BaFin) is authorized to impose sanctions in cases of abusive behavior.
Creeping in contract law
In contract law, “Creeping” describes processes in which contract terms, services, or obligations are gradually expanded or adapted without formal new agreements being made. This can lead to uncertainties about the actual content of the contract, especially in long-term contractual relationships.
Legal assessment
The gradual extension of services may lead to an implied amendment of the contract, provided both parties tolerate or actively bring about the change. Creeping becomes problematic when the adjustments are made unilaterally and do not correspond to the originally agreed contractual purpose. In such cases, judicial review may occur, especially regarding the need for consent and transparency of the changes.
Creeping in data protection and employment law
In the field of data protection, “Creeping” frequently occurs in relation to the gradual expansion of data collection, data usage, or supervisory powers. Particularly relevant are cases where employers or service providers gradually increase their powers to process data without the explicit consent of the affected person.
Legal basis
The General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG) set strict limits on the processing of personal data. “Creeping” in handling data can lead to violations of information duties, legal bases, and the principle of purpose limitation. Under certain circumstances, affected persons may assert claims for injunctive relief and damages.
Creeping in employment relationships
Within employment relationships, Creeping may occur if the employer gradually changes the scope of duties or working conditions without formal agreement. This can particularly affect the distinction between the employer’s right to issue instructions and co-determination requirements under works constitution law.
Legal relevance
If the gradual adaptation exceeds the employer’s right to issue instructions or circumvents the works council’s co-determination rights, the changes may be invalid and entitle the employee to the originally agreed contractual terms.
Creeping in tax law
Creeping can also be significant in tax law, for example if taxpayers progressively implement new business activities or tax planning models to reduce tax burdens without fulfilling statutory disclosure obligations in a timely manner. Tax authorities in particular check whether tax structures are being abused and reporting thresholds are being circumvented.
Legal consequences and sanctions for Creeping
Creeping can have both civil law and public law consequences. If supervisory authorities or contractual partners respond to gradual changes, injunctive claims, claims for damages, contract terminations or regulatory sanctions may result.
Prevention and legal structuring
To avoid disputes, contracting parties should include clear provisions on changes and consent to them in contracts. Compliance systems and internal control mechanisms can also help minimize the risks of unwanted Creeping.
Summary
The term Creeping describes in the legal context an imperceptible, gradual procedure that can trigger relevant legal consequences. Typical manifestations can be found especially in company law as creeping takeovers (Creeping Takeover), in contract law as gradual extension of services, in data protection as gradual expansion of data processing, and in employment and tax law. The legal assessment always depends on the respective statutory framework and the specific circumstances of the individual case. Legal consequences can include, in addition to civil and public law sanctions, claims by affected parties. Careful contractual and organizational structuring is advisable to avoid unwanted legal consequences.
Frequently Asked Questions
Is Creeping a criminal offense from a legal perspective?
Whether Creeping constitutes a criminal offense depends on the extent and intensity of the conduct as well as the underlying context. The term Creeping refers to the systematic monitoring or tracking of persons, usually in the digital space, without their knowledge or consent. Creeping may be criminally relevant if it amounts to harassment, stalking, or invasion of privacy. In particular, Section 238 of the German Criminal Code (StGB) (stalking) may apply if the conduct aims to seriously impair the life of the affected person. In addition, breaches of data protection regulations, especially the GDPR, and other provisions such as the right of personality under Section 823 of the German Civil Code (BGB) or the right to one’s own image (§ 22 KUG) may also apply. However, criminal prosecution becomes relevant only if the Creeping results in behavior that has serious consequences for the affected person’s lifestyle. Merely viewing publicly accessible profiles does not fall under criminal law.
What legal consequences may arise from repeated digital Creeping?
In the case of repeated and intrusive Creeping, especially if victims feel affected or a pattern of stalking becomes apparent, a complaint for stalking (Section 238 StGB) may be filed. If there is a criminal conviction, imprisonment of up to three years or a fine can be imposed, and in particularly serious cases up to five years. In addition, civil claims such as injunctions may be asserted. If Creeping is performed using sensitive personal data, this may constitute a breach of the General Data Protection Regulation (GDPR). The responsible data protection authorities can impose fines, the amount of which depends on the severity of the violation. Moreover, judicial contact and restraining orders (under the Protection Against Violence Act) may also be issued.
Does simply viewing publicly accessible social media profiles already constitute a legal violation?
Simply viewing publicly accessible social media profiles generally does not constitute a legal violation, since these contents have been made public by the account holder intentionally. Nonetheless, grey areas must be considered: If viewing occurs in a way that can be perceived as harassment or systematic monitoring (e.g., massively liking old posts in a short time), certain platform rules could be breached, which in turn may lead to consequences such as account suspensions or reports. However, behavior only becomes criminally relevant when it involves targeted investigation, identity theft, or stalking. The use and storage of images and personal data from public profiles without consent, on the other hand, can have data protection implications.
What role does data protection play in Creeping?
In the context of data protection, the decisive factor is whether personal data is processed during Creeping. According to the General Data Protection Regulation (GDPR), any collection, storage, or use of personal data generally requires consent unless there is explicit consent or a legal basis. Private viewing of publicly accessible information is covered by the so-called household exemption and usually does not require approval. However, systematic analysis, storage, or distribution of the data obtained in this way – for example, compiling dossiers or sharing in groups – constitutes data processing subject to data protection law and can be penalized with fines or claims for damages. Companies or organizations that initiate or tolerate such conduct are acting unlawfully.
Can victims of Creeping take legal action against perpetrators?
Victims of Creeping have several legal options. In cases of severe and repeated harassment, criminal charges for stalking under Section 238 StGB may be filed, as well as interim judicial protective measures such as contact and restraining orders under the Protection Against Violence Act (GewSchG). Civil law remedies include claims for injunctions (§ 1004 BGB by analogy), damages, and compensation for pain and suffering, especially if personal rights have been violated. Furthermore, breaches of the General Data Protection Regulation (GDPR) can be prosecuted both civilly and administratively, for example by reporting to the relevant data protection authority. Careful documentation of incidents is important for this purpose.
Who bears the burden of proof in the case of a complaint about Creeping?
In case of a complaint, the burden of proof in criminal law lies with the public prosecutor’s office (“in dubio pro reo”, when in doubt for the accused). This means that the victim should produce concrete evidence of the intrusive conduct, such as screenshots, logs of contact attempts, chat records, or witness statements. Chains of circumstantial evidence (e.g., conspicuous accesses, repeated likes or contact attempts from the same profiles) can contribute to establishing proof. For civil claims, a plausible account and credible documentation are generally sufficient to obtain interim injunctions. Nevertheless, comprehensive evidence is crucial for successfully pursuing the claims.
Are there differences between digital and analog Creeping in a legal context?
In principle, the same legal standards – such as anti-stalking laws, data protection, and personality rights – apply to both digital and analog Creeping. However, digital Creeping is often easier to prove because digital traces (e.g., IP addresses, message histories, profile access logs) can be analyzed. In the analog realm – for example, repeated following or observing in real life – securing evidence is much more difficult, as witness statements or video recordings can be hard to obtain. Nevertheless, the legal assessment in both cases depends on the degree of impairment and proof of systematic stalking.
