CS - Washington. German attorney Martin Bahr looks at issues of compliance under German law with court orders to remove offensive material from the internet. In his analysis, he examines both technical and legal problems. He advocates a reasonableness standard that does not require the absolute eradication of any trace of the offensive material because that could be technically impossible; and a factual impossibility is excused by the law.
Bahr begins by describing a München appellate court decision; he turns to a more recent opinion of the Hamburg appellate court; and he concludes by comparing the decisions to more recent technology developments and an internet services statute.
Generally, infringing the rights of others through the publication of material on the internet may result in an order to remove such material. The München appellate court (November 11, 2002 - Az.: 1 W 1991/02) established a high standard of care for compliance with such an order. For example, merely communicating the order to one`s system administrator and requesting the removal would be insufficient. Beyond such simple steps, an infringer needs to make certain that no remnants of the offensive material will be on the internet, including any archives. The München court also wants the infringer to analyze exhaustively whether the infringement continues (a) on his own site, and (b) elsewhere on the internet, regardless of his technical abilities, in order to eliminate any trace of the infringement.
Under German law, nobody may be liable only because he has failed to perform an objectively impossible duty (§ 275 German Civil Code). Do technical difficulties quality? In the concrete situation, would an infringer have to comply by reviewing the top five search engines or will he really have to erase that content from any and all websites on the entire internet? The Hamburg appellate court (September 9, 2002 - Az.: 3 W 60/02) explores these aspects. It suggests that the infringer is not required to examine all search engines. Such an order would not be reasonable - there are too many of them. After removing the offensive material completely from his own site, he may rely on the regular updates of search engine databases. The infringer is under no obligation to screen all servers of the internet for any remnants of whether the material is completely removed.
Bahr notes that the Hamburg decision--one year old by now--may have turned out differently if persistent online archives, such as The WayBack Machine, had existed then. Now, all websites going back to 1996 are stored permanently in such archives and remain available to all. As a result, technical progress contradicts the reasons stated by the Hamburg court: it assumed that the injurious portions of the site would disappear after some period of time because the periodic database updates. This results in the flushing out of any erased content. Therefore, the violated party can be certain that the offensive material will have disappeared.
A solution to resolve this contradiction might exist in another statute, "Teledienstedatengesetz" (TDG), which addresses telecommunications and internet issues. Bahr discusses them but ultimately concludes that a reasonableness standard should apply and is technically feasible. Email to "The WayBack Machine" is enough to have content purged. Writing an email is something anybody subject to an order of this kind can do.
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