Interference liability

from Wikipedia, the free encyclopedia

As disturbance liability under German law is liability of a jammer as tortfeasor , state interfering or Mitstörer called that general provisions in property law ( § 1004 BGB ) and the administrative law rules.

General

Liability for interference is a legal figure with which case law establishes the responsibility of a person for the violation of an absolute right . For example, it allows the right holder of a copyright , trademark , trademark or personality right to defend his right in an extended manner. Pursuant to Section 1004 of the German Civil Code (BGB), the disturbing party is liable for the removal and omission of any current or impending property disruption . From this regulation, the case law has developed the liability for interference in other areas of law .

Civil Law

According to civil law interference liability, anyone who - without being a perpetrator or participant - in any way deliberately and adequately causally contributes to the infringement of a protected legal asset can be held liable as the interferer to refrain from violating the law.

An interferer is anyone who triggers injunctive relief from third parties through impermissible immissions of smell , noise , radiation , contamination or through the emission of other disruptive factors into the environment .

Internet law

Interference liability is important in Internet law, among other things . The liability for interference is broader than the liability for distributors . The disruptive factor is someone who has anything to do with the distribution of legally objectionable content. It is controversial whether a simple reference to anonymously published data justifies liability for interference.

The scope of inspection duties is fundamentally limited, does not apply necessarily to other Web Sites and must always balancing of interests with the provisions of expression and press freedom in art. 5 para. 1 GG be seen. However, stricter inspection obligations apply as soon as the potential interferer has been addressed by a warning .

Liability for legal violations on the Internet is the basis of a business model of law firms specializing in warning letters . In June 2017 it was decided in Germany that the liability for interference for operators of WLAN networks will be abolished. The change was published in the Federal Law Gazette on October 12, 2017 and came into force on October 13, 2017.

Telemedia Act and E-Commerce Directive

For access, cache and hosting providers, the so-called liability privileges in §§ 8-10 Telemedia Act (TMG) apply , which implement Art. 12-14 of the E-Commerce Directive (2000/31 / EC). It is controversial whether these liability privileges also affect injunctive relief in Germany due to liability for interference. The BGH has been of the opinion since 2004 that the so-called liability privileges according to §§ 8-10 TMG do not apply, i. H. leave the liability unaffected. Since 2012, this has been questioned in the literature and in judgments of the lower courts, and the view is taken that the above-mentioned privileges also apply to injunctive relief claims after interference liability. The European Court of Justice made it clear that, as previously assumed by the BGH, Articles 12 (3), 13 (2) and 14 (3) of the E-Commerce Directive are to be understood as meaning that claims for injunctive relief such as those under the German Disturbance liability remains unaffected by the liability privileges.

Hyperlinks

According to largely consistent jurisprudence , German courts reject general liability for hyperlinks ; in individual cases, however, liability as an interferer comes into consideration. In 2004, the Federal Court of Justice (BGH) rejected a general liability for interference for the attachment of hyperlinks in the “Schöner-Wetten-Judgment”. In this case, a magazine reported on a gaming company in Austria that offered the option of processing bets online without wagering money. In the online edition, hyperlinks were used to refer to internet addresses of the betting provider.

In a further ruling at the end of 2010, the BGH rejected a lawsuit by leading companies in the music industry against Heise-Verlag with its “Heise ruling” . At the beginning of 2005, he had linked its website in a report on the copy program "AnyDVD" from the Antigua- based software provider Slysoft, which was supposed to be particularly suitable for producing illegal pirated copies in Germany while circumventing copy protection , and was sued for cease and desist immediately been. After Heise failed in the injunction proceedings before the Munich Higher Regional Court as well as a constitutional complaint directed against it due to a violation of Art. 5 GG (for formal reasons) and was also defeated in the subsequent main proceedings at the Munich Higher Regional Court, the publisher surprisingly won the Supreme Court after almost six years at the BGH . Finally, at the beginning of 2012, after seven years, the music industry was also dismissed by the Federal Constitutional Court with the now reversed complaint for violating Article 14 of the Basic Law .

Platform liability for trademark infringement

With regard to the Internet auction house Ricardo.de ( Ricardo decision ), the Federal Court of Justice ruled in 2004 on liability for falsified branded watches (of the Rolex brand and related brands). The possibility of liability for an Internet auction house also in the case of third-party auctions for trademark infringement was affirmed by u. a. I. Civil Senate of the Federal Court of Justice responsible for trademark law. It is true that an Internet auction house cannot be expected to immediately check every offer that the provider makes independently on the Internet. This “would call the entire business model into question.” However, if a specific case of a (trademark) infringement becomes known, the defendant auction house not only has to block the respective offer itself, but also “take technically possible and reasonable measures to take precautions to ensure that there are no further corresponding trademark infringements ”. The BGH was unable to decide how such “preferred filtering procedures” could and should look, due to the lack of factual findings in this appeal judgment. The matter was therefore referred back to the court of appeal .

Telecom Provider Liability

It is controversial whether telecommunication service providers are largely exempt from liability for interference through the provider privilege. The BGH is of the opinion that the provider privilege only applies to claims for damages, while injunctive relief such as liability for interference is not covered by it. For a long time it has not been clarified in court whether associations or private persons who provide free access to the Internet ( Freifunk ), or private persons who mistakenly do not adequately secure their WLAN (encrypt) or make it available to others and thereby enable copyright infringement, can also invoke the provider privilege . The legislator has now clarified this question. Since October 13, 2017, due to the 3rd amendment to the Telemedia Act, both fault liability and injunctive relief and any associated costs for service providers, such as B. Operator of W-LAN networks.

WLAN operator

today

In April 2017, the federal government decided on another TMG amendment to abolish liability for interference by WLAN operators in the event of illegal use. After a group of domestic politicians from the CDU / CSU parliamentary group initially expressed reservations, an agreement on the draft law was also reached in the Bundestag within the governing coalition at the end of June 2017 . The literature takes the view that “the 3rd TMGÄndG creates little legal security for WLAN operators. Claims to cease and desist against WLAN operators based on the principles of liability for interference are replaced by the unclear claim of Section 7 (4) sentence 1 TMG, which means that the case constellation of the use of illegal music exchange sites was not found to be satisfactory. It remains to be seen whether the changes may turn out to be contrary to European law. ” With its judgment of July 26, 2018, the BGH interpreted the new TMG law in conformity with European law, especially to the effect that“ the right to blocking measures (...) is not specific Blocking measures (is) limited and also (may) include the obligation to register users, encrypt access with a password or - in the worst case - completely block access. " This will restore the uncertainty of the past that the legislature just wanted to eliminate. Because it remains unclear what the WLAN provider must do in each specific case. Possible consequences are that WLAN providers take precautionary measures, in particular the registration of users - also postulated by the ECJ - although there are no indications that this measure will bring anything. Otherwise, the provider may have to be sued for every violation of the law so that the courts can explain to him what would have been the right thing to do. The consequences of interference liability for public WLANs are therefore essentially found in a different form.

history

Proceedings have been pending at the European Court of Justice (ECJ) since April 2016 to clarify whether the liability of private providers of WiFi hotspots for possible legal violations by their users is compatible with European law. The basis of the proceedings is an appeal to the Regional Court of Munich I. A member of the pirate party had defended himself against claims from Sony Entertainment due to an illegal download via his open WLAN. On March 16, 2016, Advocate General Maciej Szpunar declared before the ECJ that the operator of a shop, bar or hotel that makes a wireless network available to the public free of charge is not responsible for any copyright infringement by a user.

With the amendment to the Telemedia Act enacted on July 21, 2016, an amendment to Section 8 (3) clarified that access providers who provide users with Internet access via a wireless local network are also privileged to be liable. This makes it clear that WLAN operators fall under the so-called provider privilege. However, the actual abolition of liability for interference did not make it into the legal text. Instead, the justification for the law merely states that the legislature would like to see that WLAN operators can no longer be warned for legal violations by third parties and that claims can be made to cease and desist.

Real legal security for open radio networks is currently not achieved. In contrast to the actual legal text, the justification is not binding. Courts can use them for interpretation, but do not necessarily have to share the viewpoint presented there. It has been criticized from various quarters that the law does not involve any progress whatsoever. The grand coalition did not clear the way for open WLAN in Germany. For this purpose, it should have expressly exempted the operators from injunctive relief in the law.

In September 2016 the ECJ ruled in the “McFadden” case: “A business owner who makes a WiFi network available to the public free of charge is not responsible for a user's copyright infringement”. This statement by the ECJ could sometimes be perceived as confusing. Because in this country the WLAN operator was only threatened with claims for omission due to liability for interference. However, the ECJ still allows such a claim (or responsibility). The ECJ (which, with its formulation of non-responsibility, was primarily thinking of liability for damages) decided at the same time in the judgment that the WLAN operator can very well be sued for omission due to copyright infringements by its users; Corresponding warning and court costs can then also be imposed on him. This means that the WLAN operator is threatened with further claims and costs, especially in the most practice-relevant cases, namely claims for failure to do so. The ECJ just did not follow the advocate general's WLAN-friendly proposals, but paved the way for (still) very strict liability for interference by WLAN operators. Based on the requirements of the ECJ, national law (such as liability for interference) may result in WLAN operators having to encrypt their network and only give the password to identified users. However, the examination of the ECJ was limited due to the question referred. In this respect, the national courts were left with a certain amount of leeway to decide in individual cases a little less strictly, for which various factual circumstances (e.g. group of users, bandwidth, possibly limited time windows for users, etc.) should be decisive.

The Federal Court of Justice (BGH) ruled in November 2016 that liability for interference does not apply to the distribution of copyrighted media via file sharing if strangers gain unauthorized access to a password-protected WLAN. With this, the BGH significantly restricts the liability for interference in so-called file-sharing cases.

See also

literature

Web links

Individual evidence

  1. ↑ Sören Wollin, Störerhaftung im Intellectual Property and Personality Law , 2018, p. 19
  2. ^ A b Nicole Alexander: German Bundestag - Limitations of Liability for WLAN Providers Employed Bundestag . In: German Bundestag . ( bundestag.de [accessed on July 11, 2017]).
  3. ↑ Federal Gazette No. 67 of October 12, 2017
  4. ↑ st. Rspr. Since BGH, ruling from March 11, 2004 - I ZR 304/01 "Internet Auction I"; last again in judgment of 11/26/2015 - I ZR 3 / 14Rn. 23.
  5. ↑ z. B. KG Berlin, ruling v. 04/16/2013 - 5 U 63/12 Rn. 107; Volkmann, K&R 2012, 381; von Ungern-Sternberg, GRUR 2012, 321, 327; Mundhenk, ZUM 2014, 545; Köhler in: Köhler / Bornkamm, UWG, 34th edition, § 8 marginal no. 2.28; Lorenz, jurisPR-ITR 6/2012 note 4; Sosnitza / Ohly, UWG, 7th edition, § 8 Rn. 126.
  6. ↑ ECJ C-484/14 “McFadden”; see. Holznagel, jurisPR-WettbR 10/2016 Note 1.
  7. ^ BGH, judgment of April 1, 2004 (PDF), Az. I ZR 317/01, full text.
  8. ↑ Better betting - with foreign games of chance? Handelsblatt , August 17, 2004, accessed on December 16, 2017 .
  9. ↑ Joerg Heidrich, Holger Bleich: Documentation: Heise versus music industry. Detailed description of the entire procedure, from the warning to the highest court judgment by the defendant's legal advisor . Heise-Verlag , 2010, accessed on December 18, 2017 .
  10. ↑ Constitutional Court rejects complaint from the music industry. "Heise judgment". Spiegel Online , January 31, 2017, accessed December 18, 2017 .
  11. ↑ a b c d e BGH, judgment of March 11, 2004 , Az. I ZR 304/01, full text - Internet auction.
  12. ↑ BGH, press release , No. 31/2004.
  13. ↑ Donations against WLAN warnings. Heise Online, accessed January 4, 2012 .
  14. ↑ TMG §8 - Telemediengesetz, section 3, responsibility (§§ 7-10), § 8
  15. ↑ FAQ More legal security with WLAN - use the potential of wireless communication . Federal Ministry for Economic Affairs and Energy. Archived from the original on April 19, 2019. Retrieved April 19, 2019.
  16. ↑ Federal Ministry for Economic Affairs and Energy: Draft of a third law to amend the Telemedia Act (new WLAN Act - 3rd TMGÄndG). (No longer available online.) Archived from the original on July 14, 2017 ; Retrieved June 26, 2017 .
  17. ↑ Government improves WLAN law. Tagesschau, 05.04.2017
  18. ↑ Dana Heide: Abolition of liability for interference: Grand coalition agrees on WLAN law . ( handelsblatt.com [accessed June 26, 2017]).
  19. ↑ On the liability of the subscriber for copyright violations via unsecured WLAN Federal Court of Justice, press office press release no. 124/2018, accessed September 10, 2018
  20. ↑ PRESS RELEASE No. 28/16 of the Court of Justice of the EU. Court of Justice of the European Union, accessed April 17, 2016 .
  21. ↑ BGBl. 2016 I p. 1766, 1767
  22. ↑ End of WLAN interference liability: European law does not stand in the way of real legal security ›digital society. In: digitalegesellschaft.de. Retrieved August 24, 2016 .
  23. ↑ C-484/14
  24. ↑ http://curia.europa.eu/jcms/upload/docs/application/pdf/2016-09/cp160099de.pdf Court of Justice of the European Union, PRESS RELEASE No. 99/16 of September 15, 2016
  25. ↑ ECJ C-484/14 (“McFadden”), margin no. 76-79.
  26. ↑ ECJ, C-484/14 (“McFadden”), margin no. 101.
  27. ↑ Daniel Holznagel, jurisPR-WettbR 10/2016 Note 1
  28. ↑ Federal Court of Justice denies liability for interference with password-protected WLAN - judgment of November 24, 2016 - I ZR 220/15 - WLAN key Federal Court of Justice, press office press release no. 212/2016, accessed on January 28, 2017