Liability in Germany for Foreign Web Hosts and Content Providers: A Summary of Recent German Supreme Court And European Court Of Justice Decisions

By Dr. Ralph Oliver Graef, LL.M.*

I.          International Jurisdiction of German courts

The New York Times Case

In 2010, a defamation lawsuit against the New York Times in Germany made the news in America with speculation that it marked a new front in the problem of libel tourism.[1] The New York Times undoubtedly did not like being sued for defamation in a German court by a German resident based upon a report published in the online and print versions of the U.S. newspaper’s metropolitan section. But this case has become a landmark decision for the jurisdiction of German courts to hear international cases.

Under the German Code of Civil Procedure, legal actions based on tort theories – such as defamation or copyright infringement – fall within the jurisdiction of the court in whose district the relevant act was committed. When a website of a foreign newspaper or company is at issue, the court considers whether the website was intended to have an effect in Germany. This is the case, for example, if the text of the website appears in the German language.

However, a website can have a sufficient connection to Germany even if it publishes in another language. In the New York Times case, the newspaper had published a report about a Russian citizen residing in Germany, alleging that he was a “gold smuggler” and embezzler, and that the German company he controlled was – according to German criminal prosecutors – part of Russian organized crime. By judgment dated March 2, 2010 (VI ZR 23/09) [2] the Federal Supreme Court held that there was a substantial connection with Germany. The court asked 1) whether it can be expected that the article will be read in Germany – something that requires a substantially higher likelihood than what can be expected just because an article is available online; and 2) whether the damage to reputation will take place in Germany.

The plaintiff, a resident of Germany, was identified by name, the registered office of his company was located in Germany, and the article made express reference to the investigations by German criminal prosecutors. As a whole, the court reasoned, these circumstances indicated that there was considerable interest in this article among German readers. The court also pointed out that the Times is internationally known and has subscribers in Germany. It was irrelevant, according to the court, that the article had been published in the local section of the paper, because the report was of international interest and could easily be found by searching for the word “Germany.” The number of clicks in Germany could serve as circumstantial evidence of readers in Germany, but there is no minimum threshold needed to support jurisdiction.

The decision in the New York Times case shows that when it comes to defamation or invasion of privacy rights, publishers can face litigation in Germany over English and foreign language publications not specifically targeting the German market. Particularly because online content can easily be located and accessed, the Federal Supreme Court took the critical step of allowing aggrieved parties in Germany to sue in Germany instead of engaging in costly litigation abroad at the place of the publisher’s registered office.

eDate Advertising/X and Martinez/MGN cases

The issue of the jurisdiction of national courts was also addressed by the European Court of Justice in a decision on online infringements of reputational and privacy rights handed down on October 25, 2011 (C-161/10). [3] The European Court of Justice distinguished between infringements committed in print media and infringements committed in online media.

According to the decision of the European Court of Justice, a victim of a defamatory article published in print media in several member states has two options for suing the publisher for damages. One option is to file suit in the courts of the member state in which the publisher is domiciled, in which case these courts have jurisdiction to decide on liability for all damages resulting from the defamation. Another option is to file suit in the courts of the member state in which the article was published and in which the reputation of the aggrieved party has allegedly been harmed (the place where the damages occurred). In the latter case, national courts however have jurisdiction to decide on liability for only those damages that resulted in the member state where these courts are located.

In cases where infringement is alleged to have resulted from an article published in online media, the European Court of Justice offers three options. The court recognized that online content can be directly accessed by an indefinite number of Internet users anywhere in the world. Thus, worldwide dissemination not only increases the potential gravity of harm, but also makes it very difficult to determine where the damages have occurred.

Accordingly, the European Court of Justice found that the effects an online article has on the rights of an aggrieved party are best judged by a court at the place at which the aggrieved party’s center of interest is located. This court would have jurisdiction to decide on liability for all damages caused within the territory of the European Union.

Second, instead of suing for recovery of all damages, the affected party may file suit in the courts of each member state within the territory of which the online content in dispute is or was accessible. In this case, as in cases involving damages resulting from content published in print media, a court has jurisdiction only to decide on liability for those damages that occurred within the territory of the member state where it is located.

Third, the aggrieved party may also file suit to recover all damages in courts of the member state in which the party that published the online content or caused the online content to be published is domiciled.[4]

II.        Liability of Host Providers for Third Party Statements

Google Blogspot and SABAM Cases

Another issue recently addressed in Germany is the liability of online host providers. Liability of the party who drafted the infringing article or made the statement is beyond dispute. But difficulties arise when the aggrieved party makes a cease-and-desist demand on the website operator that made the infringing article publicly accessible. If the platform operator does not endorse the statement – for example by condoning or encouraging such statements – the operator will not be considered the perpetrator or an aider and abettor, and therefore is not clearly liable for the post.

Lawyers in the U.S. know this legal concept from Section 230 of the Communications Decency Act (CDA), which grants protection to publishers, broadcasters, blogs and other media entities for content posted on their websites by third parties. A similar concept is known as the “host provider privilege” under section 10 of the German Federal Online Act (TMG):

“A service provider is not liable for information stored at the request of a recipient of the service, on the condition that:

(1) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or

(2) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.”[5]

The legislative intent behind the host provider privilege can be summarized as follows: (i) no liability for acts beyond the provider’s control, (ii) avoidance of complex and costly requirements that websites review third party content (“review obligations” jeopardizing the business model), and (iii) no disruption of automated processes of legitimate business models.

Host providers” may still be liable under the principles governing secondary infringers. A secondary infringer is someone who in some way intentionally or proximately contributes to the infringement of a legally protected right by failing their review obligations, as determined under the particular circumstances of each case.

In the Google Blogspot decision dated October 25, 2011 (VI ZR 93/10), [6] the Federal Supreme Court spelled out in more detail the principles governing the liability of alleged secondary infringers. The defendant in this case was Google, Inc., which is registered in California. Blogspot is a Google service that allows customers to operate blogs free of charge. The specific legal issue was whether Blogspot was liable for posts by its customers that infringed the privacy rights of third parties. Because Google makes the technical infrastructure and storage capacity for Blogspot, it is a host provider. One of the hosted blogs made claims regarding purported sex club bills, alleging, among other things, fraud. The plaintiff denied the allegations, maintaining that they were false and infringed his privacy rights, and demanded that Google take down the disputed allegations.

In this case, the threshold question was whether German courts even had jurisdiction, since Google is domiciled in California. The Federal Supreme Court affirmed jurisdiction based upon the principles outlined in Section I above.

The court also spelled out the review obligations which, if violated, can also result in an injunction against a host provider with respect to content posted by third parties on its platform. The host provider is not obligated to proactively monitor articles. It has to take action only if there is a notice of infringement and such notice is so specific that a violation of law can be affirmed without difficulty –  i.e., without any in-depth review of the law or the relevant facts – on the basis of the allegations made by the aggrieved party.      First, the aggrieved party’s complaint must be forwarded to the person responsible for the blog, giving the blog author an opportunity to respond. If no response is received by the website provider within a time period determined on a case-by-case basis, it must be assumed that the aggrieved party’s complaint is valid and the disputed post should be deleted.

If the person responsible for the blog disputes the complaint in a substantiated manner, the provider is generally obligated to notify the aggrieved party and, if appropriate, request evidence proving the aggrieved party’s claim. If the aggrieved party fails to respond or fails to submit requested evidence, no further review is necessary. If, however, the aggrieved party’s response or the evidence submitted by the aggrieved party shows, taking into consideration any statement made by the person responsible for the blog, that his rights were in fact infringed, the disputed post must be deleted.

The Federal Supreme Court did not decide whether Google fulfilled these requirements. To settle this issue, the case was remanded to the lower appellate court, the Hamburg Court of Appeals.

The Google Blogspot decision by the Federal Supreme Court does not come as a surprise, considering the provisions of section 10 of the German Online Act (TMG) and the aforementioned legislative arguments in favor of the host provider privilege. The decision is consistent with prior case law of the Federal Supreme Court on the liability of secondary infringers.

In the Google Blogspot decision the Federal Supreme Court made the notice and takedown obligations of the host provider conditional upon a specific notice of infringement by the aggrieved party and upon the host provider’s ability to affirm without difficulty – i.e., without an in-depth review of the law or the relevant facts – that a violation of law has occurred. In most cases, this will no longer leave room for legal action against the host provider, for how many times can a violation of law be affirmed without an in-depth review of the law or the relevant facts?

Thus, the ruling of the Federal Supreme Court assigns greater weight to the host provider’s freedom of expression under Art. 5 (I) of the German Constitution (GG) than the aggrieved party’s general privacy rights under Art. 1 (I) and Art. 2 (I) of the German Constitution.  A host provider therefore cannot be required to promptly intervene in response to each and every complaint. Due to the great speed with which information and infringements of privacy rights can spread on the Internet, this decision strikes a heavy blow against persons whose privacy rights are infringed by news reports. Under the procedure specified by the Federal Supreme Court, very few articles will now be taken down from the websites of host providers early on, before the news spreads like a wildfire on the Internet and through social media. And even if an aggrieved party is successful under this procedure, the passage of time will mean that the infringing report has already spread on the Internet, and the damage can no longer be undone.

The ruling of the German Federal Supreme Court was indirectly affirmed – in a copyright case – by the latest European Court of Justice decision dated February 16, 2012 (C 360-10) in the Belgian matter SABAM/Netlog.[7] The European Court of Justice held that a host provider of a social network cannot be forced to proactively implement a general filter system to avoid copyright infringement at any time now or in the future.

III.       Liability of Content Providers for Their Own Statements

The Google Autocomplete Case

In the recent Google Autocomplete decision dated May 14, 2013 (VI ZR 269/12),[8] the Federal Supreme Court delivered a major defeat to Google. The defendant in this case was again Google, Inc., which is registered in California and runs the www.google.de domain. The autocomplete function allows Google to provide users who are searching certain terms with suggestions and predictions of what other terms users have searched for in that context. In this particular case, the autocomplete function predicted – or suggested as the case may be – the full name of the plaintiff “R.S.” together with the term “fraud” and other defamatory terms in Germany. The plaintiff denied the allegations, maintaining that they were false and infringed his privacy rights, and demanded that Google delete the disputed search suggestions. The specific legal issue was whether the search terms predicted – or suggested as the case may be – by Google were mere algorithm-based results of searches run by other users or carried meaning of their own.

In this case, too, the major question was whether German courts even had jurisdiction, since Google is domiciled in California. The Federal Supreme Court affirmed jurisdiction based upon the principles outlined above in the New York Times case. Moreover, Google consented to German jurisdiction by not opposing the jurisdiction of German courts.

German law was applicable to this action because conflict of laws rules state that tort claims are governed by the law of the state where the tort was committed (Art. 40 I EGBG).

Google was held liable for autocomplete results that were defamatory and infringed the privacy rights of third parties. The Supreme Court held that the combination of plaintiff name and the term “fraud” or other terms was libelous. Internet users will interpret the search term “R.S. fraud” to mean that the plaintiff is guilty of taking unfair advantage of other people, whether or not they assume that he was convicted of a crime.

Unlike for host providers, there is no privilege for content providers under section 7 of the German Federal Online Act (TMG):

“(1) Service providers shall be responsible for their own information which they keep ready for use, as provided by generally applicable law”

(2) Service providers within 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 illegal activity. This shall be without prejudice to obligations to remove or disable access to information under generally applicable law, even where the service provider does not bear responsibility pursuant to Sections 8 to 10.”

Accordingly, the Federal Supreme Court held that Google was – at least - a so- called “secondary infringer,” and thus this decision is congruent with prior case law of the Federal Supreme Court on the liability of secondary infringers. The Supreme Court reaffirmed the Google Blogspot decision and moved on to say that the notice and takedown obligations of the content provider must not be exercised on its own initiative, but that the content provider must do so upon receiving a demand and specific notice of infringement from the aggrieved party.

Thus, Google and other search engines are not obligated to monitor their search suggestions for defamatory statements by running filter software or using other, similar means. But once they have knowledge that a violation of law has occurred, they are obligated to cease and desist and use all means at their disposal to prevent future violations.


* Ralph Oliver Graef, LL.M. (NYU) is a certified specialist for copyright and media law and managing partner of the media law firm GRAEF Rechtsanwälte, Hamburg, Germany.

[1]  Libel Tourism Spreads to Germany,  Forbes , March 22, 2010. Available at http://www.forbes.com/sites/docket/2010/03/22/libel-tourism-spreads-to-germany/

[2] http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=fd7c6d0e2a8fdb3fb04df64a0a8277fe&nr=51433&pos=0&anz=1

[3]http://curia.europa.eu/juris/document/document.jsf?text=&docid=111742&pageIndex=0&doclang=EN&mode=doc&dir=&occ=first&part=1&cid=1298992#

[4] The European Court of Justice also noted that the “provider of an electronic commerce service is not made subject to stricter requirements than those provided for by the substantive law applicable in the Member State in which that service provider is established. ” C-161/10) at Para. 68.

[5] Section 10 of the Federal Online Act TMG became German law as directed by Art. 14 (I) of the E-Commerce Directive (Directive 2000/31/EC).

[6]http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=f5b25ba2ef40a0af0c231a00bbb3f6d5&nr=58574&pos=0&anz=1

[7] http://curia.europa.eu/juris/document/document.jsf?docid=119512&doclang=EN

[8] http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=d6d6c21f90e74507b75880c6eb00255f&nr=64163&pos=2&anz=3

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