Forum liability

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Under forums liability , the liability is for in Internet forums understood set posts. Since there have been insults, defamations , threats and other legally relevant statements in internet forums since their inception and the actual authors of such contributions are often difficult or impossible to determine, the question arises whether the operator of an internet forum is the representative of the Content posted there can be held responsible.

Legal situation in Germany

It is undisputed that the actual author is fully liable for his contribution. The basic requirement for this is, of course, that there is any liability at all. As soon as a criminal provision is violated, there is also a civil law claim according to Section 823 (2) BGB. The main question in civil law is whether participants in a forum are liable for advice and recommendations that they give in the course of a discussion. On the basis of Section 675 (2) of the German Civil Code ( BGB) , such liability can only exist, as an exception, if the person asking the question clearly wants the advice or information in order to make essential decisions (e.g. regarding larger asset dispositions), and if the respondent is for special expertise is required. According to a strict interpretation of the law, it is sufficient if the answer must appear to be particularly knowledgeable in terms of form or content (the respondent specifies the relevant occupation, or his answer at least suggests relevant professional expertise), but at the latest it will be given when the Respondents may also promise their own benefit from the advice (initiation of a contractual or even business relationship).

When it comes to the question of the responsibility of forum operators for content created by third parties, a distinction must be made between actual liability and injunctive relief . There is a clear legal regulation with regard to liability . In § 10 of the Telemedia Act is:

"Service providers are not responsible for third-party information that they save for a user, provided that 1. they have no knowledge of the illegal act or the information and, in the case of claims for damages, are not aware of any facts or circumstances that would make the illegal act or the information becomes obvious, or 2. you have taken immediate action to remove the information or block access to it as soon as you have gained this knowledge. "

However , this does not affect a potential injunction . Whether or not such a forum exists against a forum operator has been highly controversial in recent years. This is particularly relevant because an injunction claim is often enforced with a warning and / or an injunction , and the resulting legal and court costs are to be borne by the person against whom it exists. This is also known as liability for interference . Different regional and higher regional courts have ruled differently on this question. Most of the courts came to the conclusion that there was no right to cease and desist if the forum operator deleted the questionable content immediately after becoming aware of it. Since there is no general examination requirement, in case of doubt, knowledge is only gained through a complaint or the like. For example, the Düsseldorf Higher Regional Court ruled on June 7, 2006:

"In order to avoid that third parties can be claimed to a great extent about the interference liability, the liability presupposes, however, that the interferer has violated the examination obligations incumbent on him ( BGH , BGHZ 148, 13 [17]). It should be noted that the service provider has no general monitoring or research obligations in accordance with Section 8 (2) sentence 1 TDG as to whether illegal content is even present "

Even if this legal opinion has largely prevailed, the Higher Regional Court of Hamburg should still be emphasized, which has recently been the only court to have affirmed an injunction even if the forum operator took action immediately after becoming aware of it. This led to protests from journalists' associations and computer and legal experts (see Heise forum judgment ).

In the meantime, the question of whether there is an injunction against forum operators seems to have been decided by a high-level judgment of the Federal Court of Justice (BGH) on March 27, 2007. In the grounds of the judgment, the latter pointed out that the right to cease and desist only applies to Internet forum operators

"If the operator [...] is aware of the infringement. Failure to remove a post recognized as inadmissible is a [...] perpetuation of the violation of the personal rights of the person concerned. "

The question of the time within which a forum operator has to respond to complaints in order not to become liable has almost never been specified by the courts. Only the district court of Winsen / Luhe decided in 2005 that a period of 24 hours can be requested. This is generally accepted. The extent to which the regulation also applies to weekends or holidays is, however, legally doubtful.

It can therefore be assumed that a forum operator is neither liable nor a right to cease and desist against him if he deletes questionable content within 24 hours of receiving a complaint. If he does not do this, he can be held liable in any case and there is an injunction, even if the actual author of the article could be prosecuted.

Heise forum judgment

In 2005, the so-called Heise forum judgment received a lot of media attention, especially since the Heise-Verlag itself reported aggressively on the case, and as protests from journalists' associations and internet experts followed. The publisher's internet forum called for another website to be paralyzed using a DoS attack . The publisher deleted this appeal immediately after becoming aware of it, but refused to issue a declaration of discontinuance. Both the Hamburg Regional Court and the Hamburg Higher Regional Court affirmed this injunction. The German Association of Journalists (DJV) protested against this judgment and took the view that it would mean the death of the open Internet forums .

The legal opinion of the Hamburg Higher Regional Court is considered to be outdated by the judgment of the BGH in March 2007 (see above). Since the specific case was an injunction procedure, the legal process with the instance of the Higher Regional Court was ended and the judgment of the Hamburg Higher Regional Court is still final. The Heise-Verlag did not seek any main action in this matter.

Bundesliga forum judgment

In January 2009, the Hamburg Regional Court overturned two judgments of the Hamburg Regional Court from 2007 against bundesligaforen.de and webkoch.de. While the regional court in 2007 was still of the opinion that web forums were generally a dangerous facility and that the forum operator was a disruptor in any case, the higher regional court completely reversed this judgment and agreed with the forum operators. A forum operator is initially not a disruptor. He can become a disruptor if he does not react to indications that an anonymous third party has committed a copyright infringement. However, if he reacts within a reasonable period of time, he has fulfilled his obligations. In this case, if there was no warning notice, a chargeable warning is initially invalid and is to be assessed as a free initial notice.

Legal situation in other countries

In the United States , the legal situation is clear. Section 230 of the Communications Decency Act of 1996 states:

"No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

"No provider or user of an interactive computer service can be held responsible for the content of another content provider."

In practice, US courts have consistently advocated a legal opinion comparable to that in Germany in recent years, namely that operators are initially not liable for the content of their users, but that they must react quickly to complaints or the like.

Web links

Individual evidence

  1. ^ Volker Emmerich: Emmerich, BGB law of obligations special part. Hüthig Jehle Rehm, 2009, ISBN 978-3-8114-9707-8 , p. 175. Restricted preview in the Google book search
  2. ↑ Oliver Ebert: Self-help group - liability for information ?! In: Diabetes Journal Issue 9, 2007, pp. 52-55.
  3. ↑ § 10 of the Telemedia Act
  4. ^ Higher Regional Court Düsseldorf v. June 7, 2006, AZ I-15 U21 / 06; OLG Munich v. November 9, 2006, AZ 6 U 1675/06; OLG Koblenz v. July 12, 2007, AZ 2 U 862/06; AG Frankfurt / Main v. July 16, 2008, AZ 31 C 2575 / 07-17; Etc.
  5. ↑ I-15 U21 / 06
  6. ↑ BGHZ 148, 13 [17]
  7. ↑ Az. 324 O 721/05
  8. ↑ a b Basic judgment of the BGH on forum liability: BGH, judgment of March 27, 2007 - VI ZR 101/06
  9. ↑ AZ 23 C 155/05
  10. ↑ JurPC web doc. 70/2006, Paragraphs 1–55: LG Hamburg, judgment of 02.12.2005: 324 O 721/05 liability for forum contributions. doi: 10.7328 / jurpcb / 200621669 .
  11. ↑ JurPC web doc. 98/2006, Paragraphs 1–11: H anseatisches Oberlandesgericht Hamburg judgment of August 22, 2006 7 U 50/06 Liability of the operator of an Internet forum for posts with illegal content doi: 10.7328 / jurpcb / 200621996 .
  12. ↑ Holger Bleich: Hamburg Higher Regional Court presents reasons for the “Heise forum judgment” , heise.de report, August 28, 2006.
  13. ↑ DJV criticizes: The media cannot be held responsible for Internet forums. In: djv.de. December 8, 2005, accessed January 9, 2015 .