Fri, Jun. 16, 2006

Internet Survives Düsseldorf

CK - Washington.   The buzz on German blogs is the newest decision on the liability of forum providers for visitor comments. The well-informed Berlin Blawg publishes the Düsseldorf Court of Appeals decision in the matter I-15 U 21/06 of June 7, 2006.

Unlike the Internet-hostile Hamburg court, discussed here, the Düsseldorf court took a rational approach on January 25, 2006, and again now. While the Hamburg rule may require forum owners to pre-screen comments before activating them, Düsseldorf limits the liability of forum owners to the statutory take-down requirements after receiving notice of improper entries.

In the instant case, the owner of the forum had removed offensive matter promptly after receiving notice and had also attempted, albeit unsuccessfully, to block comments from certain IP addresses. The court determined that the provider is subject to the Tele Services Statute and does not benefit from the §11TDG privilege for third party liability under Supreme Court precedent, in particular the decision of March 11, 2005, I ZR 304/01, MMR 2005, 668.

The court noted that third party liability in German law is conceptually restrictive and requires, among other factors, a violation of existing monitoring obligations. Such obligations do not mean a general and pervasive duty to search and screen for offensive matter because that would lead to the end of the Internet as we know it.

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