It is with great pleasure that we publish our first interview, an effort that takes multiple people from multiple backgrounds to be finished. I am not going to give away our process, but let’s say it included a list of researchers and relevant people in the field and we eagerly look for someone in that same area of interest to interview them. Networking is everything, apparently.

I cannot thank enough everyone that made this possible, but also to Dr. Weidemann, who generously agreed to talk to us. We start with her bio and we continue to her interview, which was conducted by Luísa Torres. The discussion spans over social media, courts, marriage and consumer arbitration. It is a must-read!

Matheus Lucas Hebling

 

Interviewee: Dr. Denise Wiedemann
Interviewer: M.A. Luísa Turbino Torres

 

Denise’s Bio

Denise studied in Meißen and Leipzig and completed a LL.M. in Lisbon (LL.M.), where she undertook coursework in European law and comparative law. After her first state exam in law in 2013, she was awarded a doctoral scholarship by the German Academic Scholarship Foundation. In 2014 Denise was a visiting researcher at the Centre de recherche de droit international of the Université Panthéon Assas (Paris II). From 2015 she was engaged as a research assistant at the Max Planck Institute for Comparative and International Private Law, where she assumed the leadership of the Latin America desk in 2017. Denise’s Phd was awarded with the Feldbausch-Price and the Otto-Hahn-Medal in 2017. After legal clerkship stations in Brasilia and New York, she sat for the second state exam in law in 2018.

 

Interview

 

Social Media – influencers and users as consumers (Brazil and Europe)

With the growth of social media in the past decade and the emergence of influencers/content creators as producers and users as consumers, what are the legal implications we need to consider in this new dynamic?  Why do we need to pay attention to this? 

Influencer marketing became an important advertising tool during the last few years. Posts, stories, or videos on social media platforms or blogs about clothing, cosmetics, sports, or traveling come across as authentic, and they have the potential to catch consumers from all over the world. From a private international law perspective, the emergence of influencers raises a critical question: is a professional who uses this cross-border marketing strategy and attracts consumers from another country subject to the jurisdiction and laws of a consumer’s home state? Within the European Union, the decisive criterion to answer this question is whether the professional directed its commercial activity to the consumer’s state (Art. 17 Brussels Ibis-Regulation/Art. 6 Rome I-Regulation). However, this approach leaves considerable room for interpretation.

 

What are some of the differences in influencer advertising regulations in Brazil and Germany? 

Section 5a of the German Act against Unfair Competition requires identifying the commercial intent of a practice. Accordingly, some courts obliged influencers with many followers to mark all their posts as an advertisement. Other courts decided the opposite, arguing that this identification is unnecessary because the commercial intent obviously derives from the large number of followers. Thus, in Germany, there is much insecurity about when and how an influencer has to disclose a relationship with a company. The German Federal Court is expected to render a clarifying decision soon. Furthermore, some wannabe-influencers mark all their posts as an advertisement to suggest that they have a relationship with a company and – according to the principle “fake it till you make it” – lead people to believe that they are already successful.
In Brazil, influencers must obey the general rules for advertising provided by Conar (Conselho Nacional de Autorregulamentação Publicitária – National Council for Advertising Self-regulation) and the CDC (Código de Defesa do Consumidor – Consumer Protection Code), which seek to prevent misleading or abusive advertising. Accordingly, influencers must identify a post as an advertisement when it displays a product or service of a certain brand, even if there is no direct commercial relationship, but the influencer, for example, received a gift. Therefore, influencers with a large amount of followers do not always have to mark their post as an advertisement but only if there is a direct or indirect relationship with a company.

 

Media presence of courts (Brazil and Germany)

You recently wrote about media presence of courts and the principle of public disclosure from a comparative perspective in Germany and Brazil. What are some of the most striking differences between these legal systems when it comes to that? 

Compared to the German Federal Constitutional Court and, moreover, the German Federal Court, the Brazilian Supreme Court (Supremo Tribunal Federal) has wide publicity: Since 2002, the Supremo Tribunal Federal is broadcasting its hearings live on TV Justiça, a state TV channel. Similar systems exist in other Latin American states. Besides other factors (politicized appointment procedure for judges, the publication of dissenting opinions), hearings’ publicity can contribute to judges’ increased visibility in the media. Gilmar Mendes, a Brazilian Justice of the Supremo Tribunal Federal, welcomed the fact that judges are as well-known as football players because the public eye could prevent corruption and force judges to work faster. In Germany, federal judges are less visible. In the vast majority of cases, it is the court spokesperson and not judge who appears in front of the camera. A judge speaks only through his or her judgment. Even if judges are not prohibited by law from appearing in public, it prevails a reluctant attitude.

 

Early marriage (Latin America)

What is the current situation of early marriage in Latin America? 

While child marriage rates have declined in the entire world since the 1980s, Latin America has not yet reached a decreasing trend. According to UNICEF statistics, in Latin America, one woman in four aged between 20 and 24 was married before reaching 18 years old (but after the age of 15). Moreover, 5% of women were married before reaching the age of 15. The dispersion of early marriages varies considerably between the individual Latin American countries. The statistics are led by the Dominican Republic, Nicaragua, Honduras, and Belize, where more than 30% of women are married before reaching the age of 18. Brazil ranks in the middle with 26%.
During the last years, almost all Latin American countries have raised the age limit for marriage to 16 or 18 years and eliminated exemption procedures. For instance, in Brazil, marriage is considered legal by reaching the age of 16 (Art. 1517, 1520 CC 2002). Since 2019, a judicial exemption for younger people is no longer possible (Lei No. 13.811).
However, the legal amendments have not significantly impacted the number of child marriages so far, mainly due to two reasons. First, in parts of society, early marriage is still considered important because marriage can raise social status and is only accepted as a framework for (female) sexuality and reproduction. Second, UNICEF includes not only formal (civil) marriages but also informal unions under the term “marriage.” Informal unions are characterized by the fact that partners live in a shared household but are unmarried. In Latin America, early informal unions predominate early formal marriage. Indigenous communities and poor rural regions often ignore civil requirements for marriages and establish marriages according to the community’s customs. Thus, in societies where social expectations to marry still exist (for reasons of social status, sexuality, and reproduction), those expectations are not necessarily linked to civil marriage. Rather, customary or religious marriage is what counts in the eyes of society.

 

Property law (Latin America)

What are some of the legal implications for property law and some conflicts that are significant in the region? 

Objects that are firmly connected to the land can, in principle, only be transferred together with the land as accomplished by the entry in the real estate register. Aiming to facilitate a transfer of ownership in goods that are still firmly rooted in the land, some Latin American legal systems adopted the theory of anticipated movable goods from French law as early as the early 20th century. Accordingly, ownership in anticipated movable goods, e.g., trees scheduled for clearing, can, like movable goods, often be transferred by simple agreement. Transfer of ownership outside of the real estate register can, however, compromise legal certainty. It is difficult to determine whether objects connected to the land are owned by the landowner or have a separate owner.

 

Consumer arbitration (Europe)

Consumer arbitration is already common in the United States. What is the current situation in Europe? What are the consequences of replacing courts with private tribunals in disputes between companies and consumers?

In Europe, arbitration clauses in consumer contracts are rare. There is no unification and no single approach of the European Union. The Unfair Contract Terms Directive of the European Union lists examples of terms that may be regarded as unfair. One of those examples touches upon arbitration. A term may be regarded as unfair if it excludes “[…] the consumer’s right to take legal action […], particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions[…].” The meaning of that phrase is not obvious at all, as national arbitral statutes usually cover arbitrations. Thus, the directive on unfair contract terms does not ban consumer arbitration, and it gives considerable leeway to the EU Member States. The Member States’ positions towards consumer arbitration are far from identical. The different solutions range from entirely banning consumer arbitration (e.g., Czech Republic) to institutional consumer arbitration (e.g., Spain).
Advocates of consumer arbitration often raise an economic argument. It is assumed that companies will only impose arbitration clauses on their consumers if they consider arbitration cheaper than litigation. Suppose they can choose arbitration as the cheaper way of dispute resolution. In that case, consumers would eventually benefit from cheaper products and services. Nevertheless, if one accepts that consumers are different from traders (because most of them are less experienced), then the traditional arbitration proceedings, which were designed for commercial disputes, lack a number of safeguards. The first concerns international jurisdiction and applicable law: in the European Union, regulations, called Brussels Ibis-Regulation and Rome I-Regulation, contain special protection for consumers that do not necessarily apply to arbitration. The second issue regards the right to have public proceedings; arbitration proceedings are confidential and, therefore, lack public supervision. Furthermore, a last crucial drawback of consumer arbitration is that the principle of finality governs arbitration. The award may only be set aside for specific reasons. Litigation, in contrast, allows for an appeal.