German Supreme Court Upholds Blocking Orders

The Federal Court of Justice (Bundesgerichtshof), the highest court in the system of ordinary jurisdiction in Germany, decided on actions against internet service providers over access to websites linking to copyright infringing material and ended a longstanding phase of uncertainty over the applicability of website blocking orders in Germany. Due to intense public protest a few years ago, the federal government discarded its plan to establish the so-called Netzsperren and brushed administration-ordered blocking orders off the table. In this decision, the German Supreme Court confirmed that the judiciary is competent to issue website blocking orders.
The collecting rights society GEMA sought to enjoin Deutsche Telekom from providing access to the website "," hosting links to files in file repositories such as Netload, Uploaded or Rapidshare, which contain material for which GEMA members own the copyright.
The court approved blocking orders enjoining telecoms from providing access to sites hosting or linking to copyright infringing material if they knowingly provided the means to allow the infringement, provided they failed to take reasonable care. Additionally, blocking injunctions were not only permissible when the blocked domain contained exclusively infringing material, but also when the legal material was insubstantial compared to the illegal material.
The Federal Court of Justice extended the scope of the Stoererhaftung doctrine—literally the "liability of the disquieter," a form of indirect liability which only allows injunction claims, not damages claims—onto access providers. The Court made clear that access providers can be liable as stoerer—because they do contribute to the copyright infringement—but only if certain duties of care are reasonable. As the Court pointed out, the legal basis for the duties of care can be found in Article 8(3) of the InfoSoc Directive as applied by the ECJ in UPC Telekabel.
The Court balanced the access providers' freedom of speech and the copyright holder’s constitutionally protected property right. It drew the conclusion that duties of care can be reasonable within narrow boundaries. First, the access provider must have received a notification from the rightholder about suspected violations. Second, a blocking injunction against an access provider required that the rightholders had first taken steps against the primary infringer, such as the website operator or host provider, and failed to stop the infringement, or it was clear from the outset that there was no likelihood of success at all to prevent the primary infringement.  The rightholders had to take reasonable steps—for example by hiring a private investigator or involving criminal prosecution authorities—to determine the identity and location of the primary infringer.
In the case against "", GEMA obtained an ex parte injunction against the operator of the website which could not be served at the address listed with the domain name registrar. GEMA then sued the host provider, but withdrew the complaint after it became clear that the host provider's address was false, too. According to the Court, GEMA should have made further enquiries and could not go after the access provider merely because the listed addresses of the primary infringers were false. For all these reasons, in the given case, the access provider prevailed. However, once the copyrightholders will be able to fulfill the judicial requirements to take action against the primary infringer first, they will eventually be entitled to obtain court-ordered website blocking injunctions against access providers.

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