SK - Washington.   On June 28, 2004, the JurPC legal site published the December 16, 2003 decision of Brandenburg's Court of Appeal, case number 6 U 161/02, on the liability of online markets for carrying third party information which may give rise to cease-and-desist-orders because of content that violates statutes intended to protect children or to prevent crime.

The key point of the ruling is that under the statute on services by telecommunications providers, Teledienstgesetz (TDG)--an act which includes exceptions for the liability of internet service providers (ISPs)--online sales fora are liable only if they have knowledge of the existence of the relevant information and if they fail to promptly remove any offending information of which they become aware. The court established that an ISP usually would have knowledge if it adopted the contents as its own. To that end, the court applied the standard of the perception of the average consumer.

Three months later, however, on March 11, 2004, the Supreme Court in Karlsruhe decided in case number I ZR 304/01. It held that TDG exceptions from liability apply only to damages and not to injunctions. Nevertheless, the court pointed out that ISPs are liable for removing the content under basic principles of civil law, provided that they have an opportunity to acquire the prerequisite knowledge. They are not required to monitor, make inquiries, or keep records of Internet content which they host or carry. But as soon as they become aware of illegal content, they must remove it and possibly prevent future offenses.