Definition and General Information on the Term ‘Representations’ in Law
The term ‘representations’ possesses a broad and complex meaning in German law, playing a central role in various areas of law. In a legal context, ‘representation’ refers to the reproduction, presentation, design, or clarification of ideas, facts, opinions, or artistic content by means of language, writing, image, sound, gestures, or other forms of expression. The legal assessment of representations largely depends on the relevant area of law and the protected interest involved. In many cases, the classification as a representation is decisive for the applicability of legal provisions as well as the scope of legal protection or admissibility.
Representations in Copyright Law
Definition of Representation under the Copyright Act
The Copyright Act (UrhG) contains various provisions in which representations are expressly mentioned or covered by interpretation. According to § 2 UrhG, works of the visual arts, including works of architecture and applied art as well as representations of a scientific or technical nature such as drawings, plans, maps, sketches, tables, and three-dimensional representations, are among the works eligible for protection. This covers both two-dimensional and three-dimensional forms of representation.
Requirements for Protection and Rights
For a representation to enjoy copyright protection, it must be an intellectual creation of its author in the sense of § 2 para. 2 UrhG. Protection applies to both the external form and the specific design of a representation. The author obtains comprehensive rights, in particular the right to reproduce, distribute, exhibit, and publicly communicate the representation.
Distinctions and Limitations
Not all representations reach the required threshold of originality. Pure reproductions of facts or simple representations of data and numbers without individual design are not covered by copyright. Furthermore, there are exceptions and limitations, such as the right of quotation under § 51 UrhG, which allows certain uses of third-party representations.
Representations in Criminal Law
Criminal Liability of Certain Types of Representations
In criminal law, the concept of representation plays a role, particularly in the context of the criminal liability of specific content. Classical examples include the provisions of §§ 184 et seq. of the Criminal Code (StGB), which, in particular, penalize the distribution, publication, or making accessible of representations if they concern, for example, the sexual abuse of children or other criminal content (so-called child pornographic representations).
Definitions under the Criminal Code
According to § 11 para. 3 StGB, representations are not limited to pictures but also include other visual forms of expression such as photographs, films, drawings, as well as written or mechanically generated images and any other visual reproductions within the meaning of the law. The legislator thus makes it clear that the concept of representation is interpreted very broadly and also encompasses digital and virtual products.
Representations in Civil Law
Rights of Protection in Representations
In the civil law context, representations can be protected from various perspectives. Besides copyright protection, there are, for example, claims under the Act on Artistic Copyright (KUG), such as in the context of the publication of images (§ 22 KUG), as well as claims under the general right of personality, especially where a representation is capable of impairing the rights of third parties. An unlawful or unauthorized publication or dissemination of such representations can give rise to claims for injunctive relief and damages.
Defenses and Limitations
The interest in the free dissemination of representations is opposed by the interest in the protection of personal rights and protection against unauthorized use. Courts conduct a careful balancing of interests here, particularly when depicting people in public, press freedom, and in the case of satirical or artistic representations.
Representations in Media Law and Broadcasting Law
Journalistic Representations
In media and broadcasting law, ‘representation’ refers to any form of media-based reproduction of events, opinions, and facts. The relevant provisions here include primarily the Telemedia Act (TMG), the State Media Treaty (MStV), and the Broadcasting Treaty (RStV). The admissibility of representations, their correction, as well as responsibility for published content, are central regulatory elements.
Responsibilities and Protective Provisions
Providers and distributors of representations are subject to certain duties of care and control mechanisms. For example, the prevention of content that is harmful to minors or prohibited is required (§§ 19 et seq. Youth Protection Act – JuSchG).
Representations in Data Protection Law
Representation of Personal Data
In data protection law, a representation is understood to mean the graphic, written, or other reproduction of personal data. For example, when names, photos, videos, or other identifiable information are represented and thereby processed or published, these activities fall under the regulations of the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG).
Lawfulness and Rights of Data Subjects
For the representation of personal data, the data subject’s consent or a legal basis is usually required. The data subject also has the right to information, rectification, deletion, and, if applicable, to object to certain representations concerning their data.
Representations in Competition Law and Trademark Law
Representation in Commercial Transactions
Competition law regulates the admissibility of certain representations in commercial transactions, especially in advertising, product design, and brand appearance. Unfair or misleading representations are prohibited under the Act Against Unfair Competition (UWG).
Protection and Enforcement
Trademark law protects not only word marks but also pictorial or graphic representations as figurative marks (§ 3 MarkenG). Graphic representation in the register is a central criterion for the granting of trademark protection.
Representations in the Context of Art Law
Protection of Artistic Representation
Artistic representations enjoy special protection. The German Basic Law guarantees artistic freedom in Art. 5 para. 3 GG. State interference with artistic forms of representation is only permissible under stricter conditions and is subject to close constitutional scrutiny, particularly when balancing against other fundamental rights.
Frequent Areas of Dispute and Case Law Concerning Representations
Questions of Distinction and Case-by-Case Decisions
The legal assessment of whether and to what extent a representation is protected or admissible requires a careful case-by-case examination. Case law often deals with questions of the required level of originality, infringements of personal rights, the scope of copyright, the permissibility of satirical representations, or the assessment of digital content.
Current Developments
Ongoing digitization, for example through new possibilities for representation in the field of artificial intelligence, augmented reality, or computer-generated content, presents the courts with ever new challenges, such as the classification of ‘deepfakes’ or virtual representations in the metaverse.
Summary and Outlook
The term ‘representations’ occupies a complex and central role in German law. Its concrete legal meaning and assessment vary depending on the area of application, subject matter, and need for protection. Due to ongoing technological development, the legal framework for dealing with representations remains a dynamic field which is continually adapted and specified. Anyone who uses, publishes or disseminates representations should always observe the relevant legal provisions, legal consequences, and any applicable rights of protection.
Frequently Asked Questions
When is a representation legally binding?
In a legal context, representations can have different binding effects depending on their form and underlying intent. A representation is particularly considered binding when it is made as an offer (‘invitatio ad offerendum’), assurance, or declaration to third parties, accompanied by the intention to create legal consequences. According to German law (§§ 133, 157 BGB), interpretation depends on how a reasonable recipient may understand the representation. Mere expressions of opinion or legally non-binding information generally have no binding effect. However, representations set out in contracts, for example as part of guarantees, promises, or descriptions, can provide grounds for claims and have legal consequences in the event of a dispute. Even oral statements can, under certain circumstances, be legally binding if the parties intend such binding effect or where required by law (e.g. for consumer protection information).
What legal consequences arise from incorrect representations?
Incorrect representations can have a variety of legal consequences. In the event of an act of deception, the underlying legal transaction can be contested under § 123 BGB, or, in the case of contracts, claims for damages under § 280 BGB may arise. For example, if a characteristic of an item is falsely represented during the sales process, this may constitute an agreement as to its quality (§ 434 BGB), which, if deviated from, gives the buyer warranty rights. In commercial law, false representations may constitute fraudulent misrepresentation or deceit (§ 826 BGB, § 263 StGB) and give rise to criminal or tort liability. In particularly sensitive areas, such as capital market law, misrepresentations in prospectuses or annual financial statements may carry sanctions (§ 331 HGB, §§ 119 et seq. AktG).
How does the law distinguish between expressions of opinion and statements of fact?
Differentiating between expressions of opinion and statements of fact is fundamental in law because they entail different protections and consequences. A statement of fact describes verifiable, objective circumstances that can be proven (e.g. ‘this product has a TÜV certificate’). In contrast, an expression of opinion conveys a subjective judgment or assessment (e.g. ‘this machine is the best on the market’). In competition and media law, this distinction is important, for example, in determining protection under § 823 BGB or in press law claims to information. While untrue statements of fact are often actionable and subject to warning, expressions of opinion are protected by the freedom of expression (Art. 5 GG), provided they do not cross the boundary to defamatory criticism or insult.
What requirements does the law impose on advertising representations?
Advertising representations are subject to strict legal requirements, particularly in connection with the Act Against Unfair Competition (UWG). Under § 5 UWG, misleading commercial practices, including inaccurate or potentially deceptive information about the essential characteristics of goods or services, are inadmissible. This includes details about price, origin, or the special qualities of a product. The Price Indication Ordinance (PAngV) requires certain information to be presented transparently and clearly legible. Additional sector-specific transparency and labeling requirements apply to certain product groups (e.g. pharmaceuticals, food, financial services). Violations of these regulations may result in legal claims under competition law, claims for damages, or official warnings.
What is the burden of proof in legal disputes over representations?
The burden of proof regarding representations generally depends on who asserts a fact in support of their legal position. In civil law, the plaintiff regularly bears the burden of proof for all facts that give rise to a claim, and thus also for the content and accuracy of the disputed representation. If a duty to disclose certain facts is alleged, it is the claimant’s responsibility to prove that a relevant representation was omitted or incorrect. In competition law, the burden of proof may shift under § 12 UWG with respect to certain anti-competitive practices, particularly where specific documentation obligations exist. If the representation is laid down in a document, contract, or public deed, proof can be provided by submitting this document.
What statutory requirements apply to official representations?
In administrative law, official representations are subject to different purposes and regulations. They can take the form of official notifications, decisions, or information letters. According to § 37 of the Administrative Procedure Act (VwVfG), official information and representations must be clear, unambiguous, and complete. The accuracy of the information is a mandatory requirement; otherwise, a claim for official liability may arise under § 839 BGB in conjunction with Art. 34 GG if the recipient suffers damage due to an incorrect official representation. The state’s obligations to provide information, for example to citizens in certain proceedings, are governed by specific laws such as the Freedom of Information Act (IFG). False representations by an authority may also have administrative law consequences, such as the revocation or withdrawal of decisions under §§ 48–49 VwVfG.
