Almost three months after the federal elections in Germany, the leaders of coalition parties have finally concluded a non-binding coalition agreement that includes the prospect of expanded hosting provider liability for online copyright infringement.
The agreement says one of the coalition’s aims is to combat mass infringements of copyright and therefore “internet service providers should take more responsibility.” In particular, the grand coalition plans to “improve enforcement in particular towards platforms whose business model is mainly based on the infringement of copyright.” To that end, the coalition would like to “ensure that such service providers no longer enjoy the general liability privilege as so-called hosting provider and in particular no longer receive advertising revenues.”
However, it is still unclear what the grand coalition would concretely do. The general liability privilege insulating information service providers from copyright infringement claims for the acts of their users currently arises from Sections 7 and 10 of the German Telemedia Act. According to a recent decision of the German Supreme Court, under those sections, host providers are already ineligible for the liability privilege if their business model is mainly based on copyright infringement. In addition, the new government’s ability to amend the existing legal framework is questionable because the German intermediary liability provisions are based on the EU ecommerce directive, which does not stipulate different liability levels for different kind of hosting providers. Against this background it remains to be seen if the coalition agreement amounts to anything other than lip service given the current state of German and European law.
The author of this blog post, Anna Zeiter, is an LLM candidate at Stanford Law School and a qualified German attorney. She can be reached at azeiter at stanford.edu.