ISP liability requirements to block websites linking to illegal contents in Germany

The German Federal Court of Justice (BGH) has recently ruled on two cases (BGH, 26.11.2015 - I ZR 174/14, 3/14) concerning internet access providers’ obligation to block access to websites providing links to predominantly illegal content. Despite the fact that the claims to block the website in the two cases were rejected, the Court laid ground rules in this matter. According to its available press release, blocking measures can only be considered if the rightholder has made reasonable efforts to take action against those parties contributing to the infringement by providing services and the blocking needs to be reasonable. As “reasonable efforts”, the Court deems investigations necessary e.g. by hiring a company which conducts investigations in connection with unlawful offerings on the internet or by involving state investigation authorities. A blocking of the website is apparently only deemed reasonable if a global assessment of the site reveals that the lawful content is insignificant compared with the amount of unlawful content.

In order to be compliant with Art. 8 Abs. 3 of the EU Copyright Directive 2001/29/EC, the German law needs to foresee a legal instrument (here a non-statutory approach based on case law was chosen) against contributory infringement by intermediaries whose services are used by a third party to infringe a copyright or related right.

Until the full decision is released, more information can be found in the press release (only German available) or here.