Internet Service Provider Liability

The case discussed the possibility of criminal liability of CompuServe's German general manager for pornographic content that was accessible through the Internet access points of CompuServe. After first having blocked the content following a notice served by the public authorities, CompuServe again allowed access to the newsgroups with offending content. Accordingly, the Court of First Instance found that the general manager had violated obligations to prevent illicit activity and, thus, had to be convicted according to the German criminal code. The penalty was released on license. The Court of Appeals remanded the case and acquitted the German CompuServe general manager (LG M nchen I NJW 2000, 1051; comments on the judgment K hne, NJW 2000, 1003; Moritz, CR 2000, 117).

This line of legal practice has been followed later in the context of criminal-code liability and civil-code indemnity only. On the other hand, Internet service providers have repeatedly been found accountable in cases of civil-code disturbance liability. While Internet service providers argued that the German act on teleservices ('TMG') included a privilege excluding them from liability for acts that their business partners and customers committed, the German Federal Court had early on confirmed that Internet service providers are very well to be considered liable under certain circumstances. In 2004, the Federal Court handed down a first decision against eBay regarding trademark infringements that obliged eBay to remove infringing content from the platform, as well as to prevent future infringements. In its new decision, the Federal Court has confirmed this position and has substantiated the preconditions for liability claims.