The German Federal Court of Justice (BGH) has specified the requirements under which a rights holder can request an internet access provider blocks a website (judgment of 13 October 2022, case I ZR 111/21 – “DNS-Sperre”). The decision follows previous case law concerning the ongoing issue of the liability of internet access providers for IP infringements.
BGH specifies requirements for website blocking orders against access providers
Under the German Telemedia Act (TMG) an internet access provider can only be ordered to block a website with infringing content if a rights holder has no other reasonable means to remedy the violation of their rights (Section 7(4) TMG). In contrast to other jurisdictions, German law considers claims for website blocking orders against internet access providers as the rights holder’s last resort. This is especially the case in the United Kingdom, where blocking injunctions can be obtained by meeting less restrictive conditions. In its recent judgment of 13 October 2022, the BGH applied the (new) provisions of the TMG and specified the efforts expected from a rights holder before demanding a blocking injunction against an access provider.
In line with its previous decisions, the Court emphasized the access providers’ subsidiary liability in relation to those parties who are significantly closer to the infringement, e.g. the website operator and the host provider. Consequently, a strict standard is applied to rights holders seeking blocking injunctions against access providers. Confirming its 2015 decision (judgment of 26 November 2015, case I ZR 174/14) the Court repeated that the rights holder has to make reasonable efforts to take actions against the party that initially committed the infringement (e.g. the content provider) or that has contributed to the infringement by providing services (e.g. the host provider). Only if such previous claims or actions fail or lack any prospects of success and therefore a gap in legal protection would arise, would taking measures against the access provider is reasonable.
The reasonable efforts expected from a rights holder depend on the facts of the individual case. The Court, however, stipulated useful guiding principles. In any case, the rights holder is obliged to a reasonable extent to conduct investigations to identify the parties with primary liability. As pointed out by the Court in 2015, this may even require the use of state authorities or private contractors such as detectives or specialized companies. Further, seeking an out-of-court remedy against a known website operator or host provider to remove copyright infringing content is an effort that can be reasonably expected from the rights holder.
However, the Court limited the effort required by a rights holder as it made clear that the rights holder should not be expected to take any measures that would lead to an unreasonable delay in the enforcement of his claim. Nevertheless, the rights holder is generally obliged to initiate proceedings for interim relief against operators or host providers domiciled within the European Union, at least (if possible) applying to a German court. The plaintiff publishers failed to meet this requirement as they did not seek interim relief against the Swedish-based host provider for disclosure of information either in Sweden or in Germany before taking legal action against the defendant telecommunications-company.
Retaining the limited liability of internet access providers, German law places strict requirements on website blocking orders – they are the rights holder’s last resort. Primarily, claims and actions must be directed against website operators and host providers. The reasonable efforts expected from a rights holder before pursuing blocking injunctions against access providers are subject to a case-by-case analysis.
The general requirements formulated by the Court should be used as orientation. The rights holder shall try to remedy the infringement with a known website operator or host provider extrajudicial. If that is not possible or they are unknown, he needs to conduct thorough investigations to identify the parties “closer to the infringement” than the internet access provider. Rights holders then need to diligently consider the feasibility of any actions and thoroughly document efforts made in that respect. With regard to the enforcement of claims for injunctive relief and information, special consideration must be given to the fact that no measures may be imposed on the rights holder that lead to an unreasonable delay in the enforcement of his claim. Proceedings for interim relief against an operator or host provider based in the EU are, in principle, reasonable, unless there is no likelihood of success.