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LEGISLATIONTelemedia Act, February 26, 2007 [English Version] [The Telemedia Act (Telemediengesetz, TMG) applies to all providers of electronic information and communication services, such as ISPs, to the extent that they are not providing telecommunications services. The Telemedia Act, which is based on the EU E-Commerce Directive (Directive 2000/31/EC), lists three types of service providers that are exempted from a potential liability under certain requirements (safe harbors): (1) mere access providers (Section 8 TMG), (2) caching providers (Section 9 TMG), and (3) hosting providers (Section 10 TMG). The Telemedia Act also provides that service providers in the meaning of Sections 8 to 10 are not required to monitor the information transmitted or stored by them or to search for circumstances indicating an illegal activity (Section 7 paragraph 2 TMG).] Civil Code, August 18, 1886 [English Version] [The Civil Code (Bürgerliches Gesetzbuch, BGB) comprises general regulations civil law provision, e.g. on contract law, tort law and property law. The central provisions which may be applied to intermediaries, are Section 823 and Section 1004 BGB. According to Section 823 BGB, a person who is injured in his or her general right of privacy may claim compensation for the damages suffered. According to Section 1004 BGB, the person affected may bring an action for injunction against an intermediary.]

BILLS AND LEGISLATIVE PROPOSALSCoalition Contract, December 16, 2013 [Expansion of Hosting Provider Liability] [After the federal elections in Germany in September 2013, the leaders of the two coalition parties have concluded a non-binding coalition agreement that includes 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.” 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 unclear what precisely the grand coalition plans to do.] [See also CIS blog]

DECISIONS

Superior CourtsBundesgerichtshof [Federal Court of Justice of Germany], Sixth Civil Section, Jameda, VI ZR 34/15, March 1, 2016[defamation, hosting provider, review portal, anonymity, monitoring duty] [(1) The court ruled that a “review portal” can be liable for the accuracy of user-generated ratings on their web-page if they do not verify the review upon request. In the given case, an anonymous Internet user evaluated the plaintiff, a dentist, with the equivalent of a D-.   (2) The court made clear that the provider is only liable if it breaches the observation duties of the Stoererhaftung doctrine. However, a provider is obligated to verify the review if the anonymity of its portal makes it difficult for the person affected to directly address the reviewer. This implies the duty to request medical records or prescriptions. Moreover, the provider has to pass on that part of reviwers' personal information which is not privileged under § 12 TMG to the person affected by the review.] [See also CIS blog] Bundesgerichtshof [Federal Court of Justice of Germany], First Civil Section, GEMA, I ZR 3/14, November 26, 2015[copyright, hosting provider, access provider, linking, blocking order] [(1) The Court decided on actions against internet service providers over access to websites linking to copyright infringing material. The collecting rights society GEMA sought to enjoin Deutsche Telekom from providing access to the website "3dl.am," hosting links to files in file repositories such as Netload, Uploaded or Rapidshare, which contain material for which GEMA members own the copyright. (2) According to Article 8(3) of the InfoSoc Directive, the Court noted that access providers could be enjoined 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. (3) The Court also noted that the fact that it was always technically possible to circumvent blocks did not mean that they were ineffective as such. (4) However, a blocking injunction against an ISP 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 "3dl.am", 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.] Bundesgerichtshof [Federal Court of Justice of Germany], First Civil Section, Hotelbewertungsportal, I ZR 94/13, March 19, 2015[defamation, hosting provider, travel agency, rating portal, safe harbor, monitoring duty] [The court ruled that online travel agencies are not liable for the accuracy of user-generated ratings on their web pages. First, anonymous remarks in a review cannot be ascribed to the travel agency, which does not endorse the users' comments. Any informed internet user would reject the idea that booking portals make all the comments their own. Second, there is no direct liability for hosting false comments due to the safeharbor for intermediaries provided by § 10 TMG, which is based on Article 14 of the E-Commerce Directive. The “hosting provider” safe harbor applies because the online travel agency is a “neutral” platform that does not interfere with the user’s communication. Therefore, the Court noted, it is not obliged to fulfill “any unreasonable duties to review,” which could “challenge the entire business model” of the platform operator (the Court specifically referred to Sommer unseres Lebens; Internetversteigerung II; Jugendgefährdende Medien in its ruling). If, however, the booking portal is informed of comments allegedly in violation of unfair competition law, it should promptly remove them to avoid liability.] Bundesgerichtshof [Federal Court of Justice of Germany], GEMA v. Rapidshare, I ZR 80/12, August 15, 2013[copyright; hosting provider; Rapidshare; illegal file sharing; hosting provider] [(1) This case concerns a dispute between the German copyright collecting society, GEMA, and the Swiss-based file-hosting service, RapidShare. GEMA sued RapidShare in Germany, alleging that over 4,800 copyrighted music files were shared via RapidShare without consent from GEMA or the right holders. (2) According to the Court, although RapidShare’s business model is not primarily designed for violating rights, it nevertheless provides incentives to third parties to illegally share copyrighted content. It does so by (i) generating revenues through premium accounts which enhance massive data downloads, rather than on fees for storage space, as it is common for cloud computing; (ii) providing anonymous accounts to its user.; (iii) having an abuse rate of 5 to 6 percent - as acknowledged by Rapidshare - that corresponds to approximately 30,000 infringing acts daily. (3) Therefore, the Court saw fit to impose some additional duties on RapidShare to mitigate infringements.  As the court announced earlier in  ATARI v. RapidShare (see below), RapidShare (and similar file-hosting services) should abide to more stringent monitoring duties.  File-hosting services are now required to actively monitor incoming links to discover copyrighted files as soon as there is a specific reason to do so and to then ensure that these files become inaccessible to the public.  As indicated by the Court, the service provider should use all possible resources - including search engines, Facebook, Twitter or web crawlers - to identify links made accessible to the public by user generated repositories of links.] Bundesgerichtshof [Federal Court of Justice of Germany], Sixth Civil Section, Google Autocomplete, VI ZR 269/12, May 14, 2013[Personality rights; observation duties; Google; autocomplete function] [The prediction of certain negative terms within the autocomplete function of the Google’s search engine is likely to violate personality rights. Google is not privileged by § 10 TMG because the autocomplete function creates new data out of the behavior of Google users. In this case, Google does not qualify as an intermediary for information but as a creator of content. Yet, there are limits to Google’s liability for violations of personality rights caused by the autocomplete function of its search engine. The autocomplete function is no direct threat to personality rights; it is rather a certain type of user behavior that creates a threat. Therefore, Google does not need to check every suggested term in advance. But Google has to stop the display of specific terms if it has knowledge that the suggested terms violate personality rights. Furthermore Google has to prevent future violations by special observations to protect former victims. The victims’ claim follows from §§ 823, 1004 BGB. Remedies include injunctions and damages.] Bundesgerichtshof [Federal Court of Justice of Germany], First Civil Section, Morpheus, I ZR 74/12, November 15, 2012[Wi-Fi, liability for damages, duty of care, children, parents] [The Court ruled that parents are not liable under parental responsibility laws for damages caused by their children using file sharing devices, if parents duly fulfill their supervisory duties. The parents’ supervisory duties towards their children depend on the childrens’ stage of development, namely their age. Parents generally comply with their supervisory duties, if they point out the legal wrong of copy right infringements on the Internet. The instructions have to take into account the child’s age and capacity of discernment. It is sufficient to instruct a normally developed 13-year-old child that generally obeys rules set by her parents that file sharing is illegal and therefore forbidden. Parents are generally not obliged to implement any technical measures to prevent children from infringing. Furthermore, parents have no obligation to check their childrens' computer regularly or constantly supervise their children. However, such obligation might arise, if there is reasonable suspicion that children are using their Internet access for infringements.] Bundesgerichtshof [Federal Court of Justice of Germany], First Civil Section, Sommer unseres Lebens, I ZR 74/12, November 15, 2012[Wi-Fi, liability for infringement, security measures, injunction, liability for interference] [The Court ruled that whoever uses a Wi-Fi router and does not implement the safety standards against third party usage that are commonly accepted at the time the router is bought, is liable for interferences, if third parties abuse this internet access for copy right infringement. A user of a Wi-Fi router has to comply with commonly accepted safety standards at the time she starts using the router independently from the previous occurrence of infringing acts by third parties. The general burden of proof of the identity of the infringer is on the plaintiff. However, when the defendant alleges that she did not cause the infringement, she bears a duty to disclose the circumstances under which such infringement could occur (note that there is no general duty to disclose material facts/discovery in Germany).] Bundesgerichtshof [Federal Court of Justice of Germany], Atari Europe v. Rapidshare, I ZR 18/11, July 12, 2012[copyright, hosting provider, Rapidshare, illegal file sharing, monitoring obligations] [In this case, RapidShare neglected to check whether certain files violating Atari's copyright over the computer game "Alone in the dark" were stored on its servers by other users. The court acknowledged that reviewing every file that is uploaded by a user on the server would render RapidShare file-hosting service’s business impossible. Nevertheless, RapidShare should have checked its servers for similar infringing material stored by other users. Therefore, the Court noted, a hosting provider is not only required to delete files containing copyrighted material as soon as it is notified of a violation by the right holder, but must also take steps to prevent similar infringements by other users in the future.] [See also Husovec] Bundesgerichtshof [Federal Court of Justice of Germany], First Civil Section, Jugendgefährdende Medien bei eBay, I ZR 18/04, July 12, 2007[Protection of minors; eBay; competition law; protection obligations; observation duties] [Even if there is no direct responsibility of intermediaries due to the privilege of § 10 TMG, intermediaries have a duty to prevent others from violating youth protection law and competition law using their platform. This duty for intermediaries to interpose arises from § 3 UWG, and applies when one of his users commits a certain violation by selling goods without consideration of the protection of minors law. An intermediary has to prevent other violations from the same user by increasing observation. The intermediary must prohibit and stop transactions regarding the same product. The possible remedies include injunctions and damages.] Bundesgerichtshof [Federal Court of Justice of Germany], Sixth Civil Section, Katzenfreund, VI ZR 101/06, July 23, 2007 [discussion forum, hosting, libel, disturbance liability, duty to review] [The Court accepted an injunction against an Internet forum operator whose user was found to commit libel on the service. The court noted that even if the operator did not breach its duty to review, the operator can be subject to injunctions for removal based on disturbance liability.] Bundesgerichtshof [Federal Court of Justice of Germany], First Civil Section, Internetversteigerung II, I ZR 35/04, April 19, 2007[discussion forum, hosting, libel, disturbance liability, duty to review] [The Court confirmed that an injunction against a disturber is available when no third party infringement was committed, but is feared. The Court recalled that injunctions should not lead to “any unreasonable duties to review” and should not “challenge the entire business model” of the platform operator. It opined that an implementation of filtering software to flag objectively suspicious offers (e.g. due to low price for a certain keyword), then subsequently reviewed flagged transactions manually by employees, is a reasonable measure to make.] Bundesgerichtshof [Federal Court of Justice of Germany], First Civil Section, Internetversteigerung I, I ZR 304/01, March 11, 2004[auction portals, hosting, trademarks, disturbance liability, duty to review] [Auction portals like eBay are neither direct infringer nor aider and abettor and hence generally does not bear tortious liability for infringing offers of its users. Obligation to remove offers can based only on the disturbance liability and arises when the objected offer was brought to its attention and is “clearly infringing”. This obligation also requires that auction platform takes proactive steps to prevent infringement of that kind from occurring again.] Bundesgerichtshof [Federal Court of Justice of Germany], First Civil Section, kurt-biedenkopf.de, I ZR 82/01, February 19, 2004[domain name authority, protection of names, disturbance liability, duty to review] [The Court confirmed its ambiente.de case holding that same applies even in case of re-registration of the infringing domain names.] Bundesgerichtshof [Federal Court of Justice of Germany], First Civil Section, ambiente.de, I ZR 251/99, May 17, 2001[domain name authority, trademarks, disturbance liability, duty to review] [A domain name authority is neither a direct infringer nor an aider and abettor and hence generally does not bear tortious liability for third party registrations that infringe trademarks rights of others. Obligation to cancel the domain name can be based only on the disturbance liability and arises exceptionally when the objected domain name was brought to its attention and is “unambiguously infringing” or after the court determined it to be infringing.]

Lower CourtsLandgericht Heidelberg [District Court of Heidelberg], Civil, 2 O 162/13, December 9, 2014[privacy, personal data, search engine, google, search results, right to be forgotten, takedown, damages] [The Court to decide whether Google had to remove links to a web page which claimed to “expose” racists, i.e. the plaintiffs. The Court ordered Google to remove the links and awarded damages for the company's failure to remove the links promptly upon notification. The damages occurred because the plaintiff had been laid off after his employer had taken notice of the search results.  Apart from that, the Court follows Bundesgerichtshof [Federal Court of Justice of Germany], Sixth Civil Section, Google Autocomplete, VI ZR 269/12, May 14, 2013 (see above). Furthermore, The Court specifically referred to the Google Spain ruling of the European Court of Justice in its reasoning.] Landgericht Hamburg [District Court of Hamburg], Civil, 324 O 660/12, November 7, 2014[privacy, personal data, search engine, google, search results, right to be forgotten, takedown] [The plaintiff, an entrepreneur, alleged that the German google-webpage contained a “snippet” from a third-party’s blog which suggested that the plaintiff had owned a brothel. In German legal language, a “snippet” is the text below the Hyperlink and the URL on the search engine results page displayed by Google, which “quotes” a part of the linked web page. The court ruled that this “snippet” is an expression of Google, therefore Google was liable for that otherwise third-party content.] Oberlandesgericht Stuttgart [Higher Regional Court in Stuttgart], Civil, Wikimedia, 4 U 78/13, October 2, 2013[defamation, service provider, hosting provider, Wikimedia, Wikipedia, user-generated content, monitoring] [The plaintiff, a TV station owner, alleged that the German-language Wikipedia article about him contained inaccurate information. The Court ruled that Wikimedia is a “service provider” and not a “content provider.” As a service provider, the German Court declared, Wikimedia is not liable for user-generated content, nor should proactively check Wikipedia entries for allegedly illegal or inaccurate content. Furthermore, because it is a service provider, the Wikimedia Foundation may not be held liable for financial damages. If, however, the Wikimedia Foundation is informed of certain content allegedly in violation of local law, according to the court, that content should be removed to maintain immunity from liability.] [See also Wikimedia Blog post for a summary of the decision in English.]

OTHER RESOURCESInternet & Recht, http://www.internet4jurists.at/provider/entsch2a.htm

CONTRIBUTORSNikolas Guggenberger Email: nikolas.guggenberger at gmail.com Martin Husovec Email: martin at husovec.eu[personal page] Alexander MilsteinEmail: a_mils01 at uni-muenster.de[personal page] Ludwig UlmerEmail: ludwig.ulmer at gmail.com Dr. Anna ZeiterEmail: azeiter at stanford.edu

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