Friday, October 28, 2011

BGH & Two ISP Liability Cases

This week, Bundesgerichtshof decided two very interesting cases that both concern liability of internet service providers. The first, deals with liability of German domain name authority  - DENIC and second with liability of Google for the blog posts published by its users on blogging platform Blogger (the one that Huťko writes his posts on).

  • In regierung-oberfranken.de case (I ZR 131/10), BGH said that DENIC has a duty to cancel registration of the domain name, which he has become aware of on the condition that the infringement in question is apparent (obvious) and ascertainable without any further information ("Die DENIC eG muss eine ihr bekannt gegebene rechtsverletzende Domainregistrierung löschen, wenn die Rechtsverletzung offenkundig und ohne weiteres für sie feststellbar ist."  - hope Huťko's translation isn't too bad). The decision is not yet published, but press release is available and also some coverage  here and here.
  • In Blogger case (VI ZR 93/10), BGH dealt with hosting status of Google's blogging platform. It held that duty to intervene by the hosting provider arises only when the notice is so precisely written that an infringement is not difficult to determine on the basis of the allegations of the claimant, i.e. it can be affirmed without a thorough legal and factual review. ("Ein Tätigwerden des Hostproviders ist nur veranlasst, wenn der Hinweis so konkret gefasst ist, dass der Rechtsverstoß auf der Grundlage der Behauptungen des Betroffenen unschwer - das heißt ohne eingehende rechtliche und tatsächliche Überprüfung - bejaht werden kann." - hope Huťko's translation isn't too bad again). The decision is not yet published, but press release is available and also some coverage here.
Both decisions might be quite interestingly read when looking at the language used in L´Oréal v. eBay C-324/09, where Court of Justice said 

The situations thus covered include, in particular, that in which the operator of an online marketplace uncovers, as the result of an investigation undertaken on its own initiative, an illegal activity or illegal information, as well as a situation in which the operator is notified of the existence of such an activity or such information. In the second case, although such a notification admittedly cannot automatically preclude the exemption from liability provided for in Article 14 of Directive 2000/31, given that notifications of allegedly illegal activities or information may turn out to be insufficiently precise or inadequately substantiated, the fact remains that such notification represents, as a general rule, a factor of which the national court must take account when determining, in the light of the information so transmitted to the operator, whether the latter was actually aware of facts or circumstances on the basis of which a diligent economic operator should have identified the illegality.

What do you say? [btw]: Huťko has already moved to Berlin to work for the Free Software Foundation Europe as an intern. If you happen to be around, just write me an email.

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