This article is cross-posted with author's personal blog.
On Thursday, the German Federal Supreme Court issued a press release informing that it has decided two long-excepted website blocking cases (I ZR 3/14, I ZR 174/14). Although we still have to wait couple of months for the text of the decision, there are several interesting aspects that are clear already.
First, the Court accepted privately litigated IP website-blocking in Germany. Even more, the Court - similarly as the Austrian Supreme Court in UPC Telekabel and the English High Court in Cartier v Sky - recognized that the availability of this remedy is compulsory under Art. 8(3) InfoSoc Directive.
Second, the Court has effectively corrupted its own previous case-law on adequately-causal contribution to the infringements, since it seems to claim that even an access provider contributes to infringements of third parties. The German scholars who (for many good reasons) argued that Stoererhaftung converges with the tort-law might get unpleasantly surprised by this proposition. Just try to imagine that this broadly read adequate-causality is one day implemented in tort-law ..
Third, the Court seems to have decided that the injunction is only reasonable if the access provider is the last enforcement resort, i.e. the right holders tries to enforce his rights against the real infringers first (websites or its hosts) or if such direct enforcement seems without any success from the outset. For these purposes, the right holder should take all reasonable steps, including commissioning of the investigation by a specialized firm or instituting an investigation before the state authorities. Since this effort could not have been shown in these case, the Court eventually rejected the injunction.
Fourth, unlike the Dutch court(s), BGH seems to fully follow the CJEU on the low requirement for the effectiveness of the website blocking measures.
Above all, it remains to be seen how the Court will make this operational in the German context where claims for injunctions have their consequences even prior to a court decision, so the obligation of the access provider to block would be usually created prior to an order (upon a cease and desist letter). If this would be the case, huge potential issues with the freedom of expression of the users and website owners lie ahead.
Date published: November 29, 2015