Liability of online forum providers

20 November 2006

Dr Fabian Niemann, Frank Chudzick

In Germany, it has been highly disputed whether and, if so, to what extent a provider of an online forum is liable for the content placed by a user in the forum, in particular whether the provider is obliged to undertake any preventive control measures and how the provider has to react if he becomes aware of any infringing content. There have been several inconsistent judgments of a couple of regional courts in Germany in the last year. Now, two recent judgments of the regional appeal courts of Hamburg and Düsseldorf (OLG Hamburg, 22 August 2006, reference 7 U 50/06 and OLG Düsseldorf, 7 June 2006, reference I – 15 U 21/06) have cleared up the questions to a substantial extent.

Both regional appeal courts stated that there must be a balancing of the constitutional rights of freedom of information and opinion and of the free flow of information on the one side and of the infringed personality, intellectual property or other rights on the other side. The Regional Appeal Court Hamburg compared an online forum with live interviews on TV which enjoy a great extent of freedom under German constitutional law. Further, both regional appeal courts refer to a judgment of the Federal Supreme Court Germany on online auctions of 2004 (BGH, 11 March 2004, reference I ZR 304/01) in which the Federal Supreme Court stated that there is no general preventive control obligation of an online auction provider and that the obligation of the online auction provider to react upon awareness of an infringement depends on the circumstances of the individual case and the technical and economic possibilities to implement reasonable measures to avoid similar infringing acts in the future.

Based on these principles, both regional appeal courts have judged that no general preventive control obligation of (both non-profit and commercial) online forum providers exists. Further, the courts said that (both non-profit and commercial) online forum providers have to remove a concrete infringing content if the right-holder has informed the provider about the content or if the provider has become aware of the infringement by any other means. The question on which still no absolute clarity exists is whether the forum provider has to undertake any further measures to avoid similar infringements in the future if he becomes aware of an infringement.

The Regional Appeal Court Hamburg stated that a commercial online forum provider has to at least take all reasonable measures to avoid similar infringing content being placed in the same forum again in the future. The Regional Appeal Court Düsseldorf on the other side stated that a non-profit online forum provider need not take any measures to avoid similar infringements happening again in the future.

In line with the general Federal Supreme Court, judgments on the freedom of press and the Federal Supreme Court judgment on online auctions, both regional appeal courts however said that it is important to consider the facts of the individual case and to balance the different interests. Therefore, it can be said that whether and to what extent any measures following a concrete infringement have to be taken by an online forum provider depends on how material the infringement was and whether the provider acts commercially or non-commercially. If the infringement was material, commercial providers at least need to undertake control measures to avoid similar infringements in the future.