22 April 2020
In times of Corona, ordering a hearing by means of image and sound transmission in accordance with Section 128a of the German Code of Civil Procedure (ZPO) presents as an offer to conduct upcoming hearings and to prevent an imminent delay of litigation. However, it is literally an offer the parties cannot refuse as the court order is not appealable. Parties can effectively raise concerns about the order only when the court – as is mandatory – requests a statement by the parties before issuing the order.
In the following, the requirements and – sometimes undesirable – consequences of an order pursuant to Section 128a ZPO will be discussed with regard to patent infringement and validity proceedings before the German courts.
The options available under Section 128a ZPO are – simply put – hearings by video conferencing (para. 1) and witness examination by video conferencing (para. 2). This article refers to hearings by video conferencing and excludes possible issues concerning the examination of witnesses by such means.
The court may order a hearing by video conferencing at the request of a party or ex officio at its own discretion. In accordance with the legislative intention to increase the use of video conference technology in court proceedings, the parties’ consent is not required (Parliamentary matter 17/12418, p. 1, 14). However, the parties must be heard before the order is issued and can use this opportunity to express their reservations against such proceedings (Zöller/Greger, ZPO, 33rd ed. 2020, § 128a, marginal no. 3). How much time is granted to the parties is not stipulated by the statute and is decided on a case-by-case basis. If the court decides to conduct the hearing by video conferencing, a court order is issued which is unappealable pursuant to Section 128a (3), 2nd sentence ZPO.
The court summons the party or parties to the proceedings to be connected by video conferencing to the place of transmission, i.e. the place where it will be present during the videoconference (Zöller/Greger, ZPO, 33rd edition 2020, § 128a (4); Saenger/Wöstmann, ZPO, 8th edition 2019, § 128a (2). Since the statute does not impose any restrictions in this respect, any location fitted with the necessary technical equipment, for example the offices of the attorneys of record, can be chosen. Alternatively, the court orders that parties may participate in the hearing from a location of their choice and are subsequently informed of the chosen place of transmission by the parties. This can be considered, for example, when employing video conferencing software which can be used from any location. It is the responsibility of the parties and attorneys to provide the necessary technical equipment. In accordance with Section 128a (3), 1st sentence ZPO, the video conference – as well as the hearing in the courtroom – is not recorded.
On the other hand, the court venue, i.e. the place where the hearing takes place, remains the building of the competent court (Musielak/Voit/Stadler, ZPO, 17th ed. 2020, § 219, marginal no. 1). This is where the bench meets with the participation of the judicial officers and, if applicable, spectators (publicity). Consequently, the parties summoned under Section 128a ZPO cannot be prevented from appearing in person at the court venue, i.e. in the courtroom (Parliamentary matter 17/12418, p. 14).
It is for the court to decide which video conferencing system is used. For example, the Xth Civil Senate of the Federal Court of Justice recently ordered in several proceedings that the oral proceedings be conducted by video conferencing using Microsoft's ‘Teams’ software. For this purpose, a short instruction for using the software was sent out to the parties.
The attractiveness of conducting a hearing by video conferencing may be questioned in the light of both legal and practical concerns:
The place of transmission and the court venue not being the same gives rise to criticism of a hearing by video conferencing. Since neither the parties nor their representatives can be prevented from appearing in the courtroom, it is possible that one of the parties or its representatives may remain in front of the screen - in patent infringement proceedings or even in nullity proceedings - while the other party appears in the courtroom in person. This can at least create a problem of equality of arms, because physical presence is equated with an increased persuasive power of presentation. On the other hand, the nature and persuasiveness of the presentation of the parties connected by video conferencing may be inhibited. A hearing on equal footing would therefore only be guaranteed if none of the parties were allowed to appear in the courtroom in person. However, current laws do not permit this. If all parties to the proceedings decide - on the basis of these or other concerns - to appear in the courtroom in person, the Corona-related purpose of the order is in any case taken ad absurdum.
The requirement of publicity of the hearing according to Section 169 of the German Courts Constitution Act (GVG) is met at the court venue, i.e. in the courtroom. The transmission of the video conference, however, should not be public. Sound and film recordings for the purpose of public presentation or publication of the content of the hearing remain inadmissible according to Section 169 (1) sentence 2 GVG. The question therefore arises as to how to ensure that the conference system is protected against access by unauthorised third parties. Even the use of Microsoft’s ‘Teams’ - recently ordered by the Federal Court of Justice - is not free from such risks. The fact that Microsoft's operating system and software are also exposed to attacks by hackers is evident, inter alia, from the establishment of the ‘Microsoft Detection and Response Team’ (DART).
Such security concerns are of particular concern where the public has been excluded from trial for reasons of secrecy protection in accordance with Section 172 GVG. In this case, unauthorised access or the recording of the video conference not only violates the procedural principle of the inadmissibility of sound and film recordings, but also entails the risk that confidential information such as important business, company or invention secrets, whose need for secrecy the court has already recognised by ordering the exclusion of the public, will be made accessible to unauthorised third parties. This risk is greater in a video conference than in a ‘traditional’ hearing in the courtroom. First – provided that the technical knowledge is available – unauthorised access to a video conference should be easier to achieve than access to a courtroom. Furthermore, it would appear that confidential information obtained through unauthorised access to a videoconference could be transmitted quicker and on a larger scale. From a liability law-driven perspective, the question arises to what extent the attorneys involved can guarantee the security of the transmission channels. Generally, using the video conferencing software via the law firm’s network will be prohibited in order to protect other clients’ the data from unauthorized access. However, the law firm’s network in particular may be the one best equipped with increased security measures. Parties who are denied the use of video conferencing software on their corporate network to protect confidential data and who do not have access to an independent network with enhanced security measures are also subjected to this issue.
In the event that technical issues occur during the video conference, the court must interrupt the hearing if mutual communication of the parties is thereby restricted (Musielak/Voit/Stadler, ZPO, 17th ed. 2020, § 128a, marginal 4). Some even call for an interruption and rescheduling of the hearing rescheduled in compliance with the necessary period of notice (Baumbach/Lauterbach/Anders/Gehle, ZPO, 78th ed. 2020, § 128a, marginal 8). In such a case, which cannot be ruled out in view of the current high network utilisation, the intended acceleration of proceedings would be thwarted.
Video conferencing may at first seem promising from the perspective of overseas clients, because there is the hope of being able to avoid often time-consuming travel. However, it is not easily possible to join the proceedings via video conferencing from abroad. Conducting an oral hearing, i.e. also the participation of the parties, constitutes a sovereign act of the court, which on foreign territory is in principle only possible with the consent of the foreign state by way of international legal assistance (Stein/Jonas/Kern, ZPO, 23rd ed. 2016, § 128 a, marginal 35). If the party wishes to attend the hearing, it is therefore likely that it will not be spared the journey to Germany.
In court proceedings with mandatory attorney’s representation, it may be argued that the parties cannot address the court directly anyway, but only through their attorney. Their connection from abroad could therefore be classified as a mere spectator’s function, which does not constitute a participation in the hearing. However, this is opposed by the fact that spectators, i.e. the public, are granted access to the courtroom, but not to the video conference. It would be hard to justify a party invoking its party status for access to the video conference, but simultaneously referring to a spectator’s role in view of the foreign state's requirement for consent.
Since the order pursuant to Section 128a (1) ZPO is unappealable, the parties have only one chance of raising their objections to a hearing by video conferencing, namely by means of the statement required before the order is issued. Therefore, the statement and adequate presentation of the objections must be given the necessary attention. Since no established case law is known on which objections have been successfully raised against an order under Section 128a (1) ZPO, the chance of success is difficult to assess at present. A judicial review of the order is possible at best by lodging an appeal against the judgment on the merits if a party’s right to a fair trial or the right to be heard has been infringed by the order of the hearing by video conferencing or its execution (Stein/Jonas/Kern, ZPO, 23rd ed. 2016, § 128a, para. 34).
We have compiled on our website comprehensive information and recommendations for action in response to the legal implications arising from the coronavirus pandemic: Coronavirus - legal issues