Tue, Jun. 05, 2007

Forum Liability in Supreme Court

CK - Washington.   Conflicting positions by various courts characterized the German legal landscape in the realm of vicarious liability for the publication of libelous statements in forums on the Internet. Is the ISP or operator of a forum liable for others' publications? Or would the shield of the telecommunications law govern and protect the ISP?

The Supreme Court in Karlsruhe held on March 3, 2007 in a ruling published June 5, 2007 that a claim for libel may be brought against both the poster and the operator. In the matter VI ZR 101/06, the court held also that the take-down claim is directed at a future activity and should be governed by the most recent amendments of the telecommunications statute despite the fact that the alleged publications occurred under the former statute.

Like the old statute, the new one does not create new causes of action, the court explained. The cause of action for libel lies in the general statutory provisions of the Civil Code. The telecommunications law provides a filtering function which leads to the plaintiff's take-down claim. Unlike precedent governing libel in live TV shows, where a removal is not possible and a cease and desist order would be futile, a post in an Internet forum survives the moment when it first appears.

Such posts continue to damage victims until their removal from the forum. Like a TV station in the event that it were to rebroadcast an offensive show, an operator--whom the court calls the master of the offerings--must take action to prevent further dissemination of the illegal publication. The plaintiff is not limited to seeking redress from the poster and additionally may hold the provider of the forum responsible for the removal.

Importantly, the ruling is limited to the removal action. The court did not decide other remedies generally available in defamation actions because a damages claim had evaporated in the courts below. Telemedicus blog discusses several cases with forum liability, including a May 31, 2007 ruling from Berlin where a university professor unsuccessfully objected to publications in a student forum. The case is known as the Mainprof.de matter.

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