The document discusses the concept of "interferer liability" in German law, which holds that an interferer who intentionally contributes to a third party's infringement of intellectual property rights can be liable for injunctive relief. It applies this concept to analyze the liability of internet service providers for copyright infringements by users. Key points include: German courts have imposed "reasonable measures" on ISPs to prevent future infringements, such as notice-and-takedown and limited filtering; but the appropriate scope of such measures remains debated. The document also analyzes how this approach relates to and may be limited by European directives on e-commerce and copyright.

1. ISP Liability through
“Interference” in Germany –
an overview
Birgit Clark, IPKat event
1 April 2014, Bristows LLP

2. Störerhaftung – a unique beast!
• Issue of correct translation into English: interferer or
disturber? Even defining the term in German is far from
straightforward.
• General civil law (Sachenrecht), Articles 823, 1004
German Civil Code.
• Administrative and Police law (Gefahrenabwehr)
• Copyright law, see e.g. Article 19a, 69a, 97 German
Copyright Act.
• Internet law, in particular ISP liability
• Different types of interferer: Handlungs-,
Zustandsstörer.

3. Liability through ‘Interference’?
• Störerhaftung is a long established German legal
concept, not limited to copyright, trade mark or even IP
law.
• A Störer literally translated is an interferer or disturber.
• Usually, direct liability for copyright infringement requires
an infringement (e.g. an unlicensed distribution, or at
least willing and knowing participation in an unlicensed
distribution) of copyright protected works.
• An interferer, however, is someone who, without being
a perpetrator or participant, contributes willfully to
an infringement of absolute rights in a sufficiently
causal manner.

4. European Law on indirect IPR liability
• European law on indirect liability for IPR infringement
“fluffy”.
• Enforcement Directive 2004/48 (Articles 9, 11) and
Information Society Directive 2001/29 (Article 8(3)) oblige
Member States to provide for claims against indirect
infringers.
• Provisions on the protection of technological protection
measures (TPMs) and digital rights management information
(DRM) in the Information Society Directive (and other
copyright Directives) regulate specific cases of indirect
liability.
• By contrast: Articles 12 - 15 E-Commerce Directive
2000/31 contain limitations on ISP liability  equivalent
provisions in German Telemediengesetz (TMG).

5. European Law on indirect IPR liability
• Resulting obligation for Member States unclear: Recital 59
Information Society Directive (copyright and related rights) and
Recital 23 Enforcement Directive leave procedures and
conditions of injunctions as well whether other remedies
should be provided to national law.
• How damages can be directed against indirect infringers not
regulated by European law.
• Term ‘intermediary’ not defined in the relevant Directives.
• Level required to achieve minimum harmonisation unclear.
• Interplay between rules on the liability of intermediaries in
Enforcement and Information Society Directives and ’safe harbour’
rules in Articles 12 - 15 E-Commerce Directive for ISPs are unclear.

6. Privileges in E-Commerce Directive
• Articles 12 - 15 E-Commerce Directive privilege different
kinds of ISPs:
– Access and transmission providers (Article 12),
– Caching providers (Article 13),
– Host providers (Article 14).
• No host liability where ISP has no actual knowledge of
the infringement and no awareness of any facts from
which infringement is apparent.
• Provisions are mirrored in German Telemediengesetz.

7. Privileges in E-Commerce Directive
• Upon knowledge/awareness of an infringement, ISP
must act expeditiously to remove or to disable access
to the infringing information.
• Privileges not meant to prevent national authorities
or courts to prevent/stop infringement based on
national laws.
• General principle in Article 15 E-Commerce Directive
means that Member States must not impose any
general obligation on ISPs to monitor stored or
transmitted information.

8. Limitations to ISP liability
• BGH bases its concept of ISP liability as ‘interferers’
(limited to injunctive relief) upon a restrictive
interpretation of the liability privileges of the E-
Commerce Directive, i.e. as not fully covering injunctive
relief.
• BGH developed its own criteria concerning the scope of
an ISPs obligation to prevent future comparable
infringements.
• Seen as acte claire, never referred to CJEU.
• CJEU has, however, developed an arguably similar
approach in its case law, inlcuding in L’Oréal v eBay,
Google France, SABAM, Scarlet and UPC Telekabel
Wien.

9. Limitations to ISP liability
• CJEU appears to tend towards an interpretation which
limits liability limitations to cases where the host provider’s
service is genuinely neutral.
• Article 15 E-Commerce Directive: only genuinely ‘neutral’
service providers should benefit from the privileges.
• Recital 42 E-Commerce Directive: provider’s activity must
be of a “mere technical, automatic and passive nature”.
• Neutral  host provider’s service has to be
independent from the contents of the hosted/carried
information without any direct (e.g. financial) interest
of the provider regarding the specific contents of that
information.

10. Limitations to ISP liability
• Before looking at liability limitations, one needs to
determine the existence and conditions of the
contributory liability of ISPs for primary infringements
by their users
• This is done under national law, which is only partly
harmonised (see Article 11 Enforcement Directive and
Article 8(3) Information Society Directive).
• In Germany this is where we encounter the so-called
‘interferer liability’ for copyrights and trade marks.

11. German Approach
German case law on
contributory liability for the
infringement of IPRs is divided,
even within BGH itself:
For copyright and trade mark
law, the BGH’s 1st Civil Senate
BGH bases liability of mere
contributors on interferer liability
(Störerhaftung).
For patent law, the BGH’s 10th
Civil Senate applies a concept of
contributory tortious liability,
which regards contributory acts
as independent tortious patent
infringements.

12. German Approach
• Concept of Störerhaftung applied in cases of contributory
liability of ISPs for copyright and trade mark infringement
of their users.
• BGH landmark decisions in the ‘Internet Auction cases’
(BGH, GRUR 2004, 860 – Internetautkion I; BGH, GRUR 2007, 708 –
Internetauktion II; BGH, GRUR 2008, 702 – Internetauktion III)
• It was held that an internet platform provider is not
tortiously liable as an infringer/perpetrator or participant
in infringing acts of its users provided it had no actual
and concrete knowledge of the infringement.
• By way of background: tortious participation in an
infringement would require the participant’s and
principal’s intention.

13. German Approach: interferer liability
• BGH: any person who has intentionally made a causal
contribution to the direct infringement of an IPR by a
third party can be held liable for injunctive relief as
interferer.
• Three requirements:
1. intentional adequate causal ('with sufficient
causative effect‘) contribution to the infringing acts
of any third party;
2. legal and factual possibility of preventing a
resulting direct infringement;
3. a violation of a reasonable duty of care to prevent
such an infringements.

14. German Approach: interferer liability
• BGH’s interpretation of the E-Commerce Directive based
upon wording and systematic context of Article 14(3)
E-Commerce Directive.
• BGH: Article 14(1) E-Commerce Directive privileges the
host provider only in relation to claims for damages
and criminal liability, but not in relation to injunctive
relief.
• Acte clair and BGH did not refer the issue to the CJEU.

15. German Approach: interferer liability
• Liability under the head of Störerhaftung is limited to
injunctive relief, including preventive injunctions.
• Damages cannot be claimed.
• Interferer's liability requires a breach of a reasonable
duty of care”  injunctions may require interferer to take
reasonable measures to prevent further comparable
infringements in the future.
• Measures depend on individual case but must not be so
burdensome that they could harm ISP’s entire
business model.

16. Issue of ‘reasonable measures’
• The extent of ‘reasonable measures’ (aka ‘audit duties’)
in the centre of debate about ISP liability.
• Only reasonable (‘proportionate’) and technically
possible measures may be imposed to identify
comparable infringements.
• Contradictory court decisions over the years on what is a
reasonable measure, example are the Rapidshare (a
one-click hosting sites) cases.
• Each Higher Regional Court had a different view, or so it
seems…

17. Issue of ‘reasonable measures’
• OLG Cologne (6 U 86/07 of 21 September 2007): not
reasonable to require the use of file name filters to detect
specific copyright-protected works since they cannot
differentiate between legal/illegal copies.
• OLG Hamburg (5 U 73/07 of 2 July 2008): business
model is not legitimate because it aims to facilitate the
illegal use of copyright proetected material. Thus all
necessary measures to detect and delete infringements
are “reasonable”.

18. Issue of ‘reasonable measures’
• OLG Duesseldorf (5 U 73/07 of 27 April 2010): duty to
delete infringing copies/files but Further monitoring of
stored, uploaded or downloaded files is unreasonable.
• OLG Hamburg (5 U 87/09 of 14 March 2012): increase
of “cloud services” so business model now legitimate.
However, it allows completely anonymous uploads with
high risk of abuse. Still significant duty of care, albeit
perhaps not as significant as found in 2009.

19. BGH on ‘reasonable measures’
• Two BGH decisions clarified standard of reasonableness
by strengthening preventative, specific filtering duties: I ZR
18/11 of 12 July 2012, Alone in the Dark and I ZR 80/12,
Rapidshare of 15 August 2013.
• Duty to “take all technically and economically
reasonable measures to prevent future uploads of files
which have been reported to be illegally distributed
through its service”.
• No exhaustive checklists but a reasonable minimum
standard.
• Audit duties might go further if an ISP were to play an
active role in terms of knowledge/control.

20. BGH on ‘reasonable measures’
• Notice and takedown: duty to delete any files that are
reported to be illegal copies of copyrighted works.
• File name filters: once notified of a copyright infringement,
duty to use file name filters to prevent future uploads of the
same/similar files as well as screening of already stored
files; need for copyright protection outweighs the user
interests in legal back-up copies.
• Monitoring of link lists: duty to actively monitor online
third-party link lists known for publishing links to infringing
files stored on the hosting service's servers and to delete any
infringing content advertised on such sites. Only a limited
number (single-digits) of third-party link lists, as a more
comprehensive monitoring obligation would be economically
unreasonable.

21. BGH on ‘reasonable measures’
• Determined by taking into account all the facts of the
case, including, role and function of the interferer,
degree of causation (i.e. danger of direct infringement),
possibility that the claimant might file an action against
the direct infringers, etc.
• For host providers such as internet platforms, there is no
reasonable duty of comprehensive ex ante
examination of any user infringing content.
• As a rule, ISPs cannot be expected to screen and
control any content before it is available on the
internet.
• Only applies ‘neutral’ ISPs.

22. BGH on Reasonable Measures
• In light of Article 15 E-Commerce Directive BGH stresses that
even with regard to injunctions, basic principle remained
that no general obligation to monitor should be imposed
upon ISPs.
• In Jugendgefährdende Medien (I ZR 18/04 of 12 July 2007)
BGH had already clarified the measures that can be imposed
to prevent future comparable infringements:
– limited to adequate and reasonable filtering activities in
relation to offers by the same user in the same category
or with regard to infringements with same main features
found in the first infringing offer.
– No obligation to prevent any future comparable
infringement at any cost.

23. Issue: what if an ISP is not neutral
Kinderhochstühle im Internet II (BGH, I ZR 216/11 of 16
May 2013):
• Internet auction platform liable for copyright
infringements of third parties if it itself actively
promotes the infringing offers by its own marketing
campaign (i.e. not neutral).
• Third party seller offered copyright infinging chairs on
internet aution platform. Auction house had already been
notified through other sellers that the third party’s chairs
were infringing when it started its online keyword
campaign.

24. Issue: what if an ISP is not neutral
• Liability privilege (Articles 7, 10 TMG) does not apply.
• Due to its promotion of the chairs through its own
keyword campaign, ISP was no longer neutral but
took more active role.
• Reasonable measure included duty to manually review
every offer linked through the keyword campaign.
• Automatic filter not sufficient due to evidence that
intermediary knew of previous allegations of copyright
infringement with respect to the same products and
the same seller.

25. Need for “tortious action”?
• Störerhaftung limited to injunctive relief.
• Scholars argue it should be developed into a tortious
action of contributory liability since indirect liability
based on a violation of a reasonable duty of care is also
an established element of contributory tortious liability in
general civil law (Haftung wg. Verkehrspflichtverletzung).
• Could cover claims for damages.
• Indeed BGH has in the past (Jugendgefährdende
Medien) based liability of an internet auction house for
prospective acts of unfair competition by its commercial
users on violation of an independent, tortious duty of
care to prevent 3rd party acts of unfair competition.

26. Need for “tortious action”?
• In Halsband (BGH, GRUR 2009, 597) based contributory
liability of an eBay-account holder for trade mark
infringements, committed by using his account data, on
tortious liability due to a violation of a duty of care by
account holder to effectively control access to his
confidential account data.
• BGH subsequently in Sommer unseres Lebens (BGH, I
ZR 121/08 of 12 May 2010) emphasised that new
concept of tortious contributory liability was limited
to unfair competition law, specifically to the issue of
account liability.
• BGH expressly clarified that the findings in
Jugendgefährdende Medien did not apply to trade mark
and copyright law.

27. Need for a “tortious action”?
• In Sommer unseres Lebens, BGH refused to hold the
operator of an insecure internet access that had been
used by a third party for copyright infringement liable as
an (additional) tortfeasor.
• Operator had not complied with his reasonable duty of
care to secure his WLAN access, but did not fall under
specific requirements for infringement under Article 19a
(‘making available right’) German Copyright Act.
• BGH: insecure WLAN cannot be equated with the
specific act of making a copyrighted work available to the
public.

28. Need for “tortious action”?
• In BearShare (I ZR 169/12 of 8 January 2014) BGH held that
the owner of an internet connection was not liable – not even
as interferer - for copyright infringing ‘file sharing’ committed
by a grown up family member, provided there had been no
previous indications of such behaviour.
• BGH (1st Civil Senate) very clearly has no plans to change
Störerhaftung into a concept of tortious liability for any willful,
negligent general contribution to copyright or trade mark
infringing acts by third parties  
• BGH (10th Civil Senate) for patent law, however, assumes an
independent head of tortious ISP liability for indirect
infringement through wilful, negligent causation.

29. Contributory liability in Patent Law
• In patent law, BGH assumes that a knowing
contribution combined with a violation of a
reasonable duty of care (= negligence) can already
trigger indirect tortious ISP liability; (see for example: BGH,
GRUR 1999, 977 - Räumschild; BGH, GRUR 2002, 599 – Funkuhr; BGH,
GRUR 2007, 313 – Funkuhr II: BGH, GRUR 2009, 1142 – MP3 Player
Import)
• Legal consequences include damages and are more far-
reaching than interferer liability.
• No general rule of contributory liability for the
different kinds of IP in Germany.

30. Short Definition of Störerhaftung
“Issuing an injunction against hosting providers in Internet law is
based on the German principle of Störerhaftung which can be
translated as the liability of a “disturber” or “interferer”. It is important
to note that interferer liability is a long-standing principle which has
existed for many years and is now being applied to Internet law. This
principle protects absolute rights pursuant to secs 823, 1004 of the
German Civil Code. It means that anyone who somehow contributes
deliberately and adequately causal to the infringement of a
protected right can be subject to an injunction, without being the
perpetrator or an accessory. Trade marks are such protected
absolute rights. Injunctions can be issued regardless of negligence or
fault. However, this action does not result in monetary compensation
for the trade mark owner.
(Arnold, in: L'Oreal v Ebay; [2009] EWHC 1094 (Ch))

31. ISP Liability through
“Interference” in Germany –
an overview
Birgit Clark, IPKat event
1 April 2014, Bristows LLP