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BGH requirements for blocking websites in cases of copyright infringement
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Background of the proceedings
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In its judgment of 13 October 2022 (Case No.: I ZR 111/21), the Federal Court of Justice (BGH) developed fundamental standards on the question under which conditions the blocking of websites by access providers is legally permissible when copyright-infringing content is distributed there. In the case decided, a music label took action against an internet provider. The label complained that music recordings were made illegally accessible via its services, without it being possible to identify the owners of the websites or to take legal action against them.
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Standard of review for network blocking measures
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Principle of subsidiarity and reasonableness
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The BGH confirmed that network blocking measures are generally to be considered only as a last resort. First, rights holders must exhaust all steps that are reasonable for them to take to identify and pursue the direct infringers. Only if enforcement against the actual infringers demonstrably remains unsuccessful – for example due to the operators’ lack of traceability or anonymity – may the claim be directed against the access provider.
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Duties to investigate and burden of substantiation
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According to the decision, a blanket reference to difficulties in investigating is not sufficient. Rights holders are obliged to state specifically what efforts they have undertaken to determine those responsible, for example by evaluating publicly available information or by taking the most comprehensive legal steps possible. A network blocking measure is only to be considered after these efforts have been documented without gaps.
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Scope of review for access providers
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Conversely, access providers are also required, within the scope of their responsibility, to examine the feasibility and proportionality of a block. The BGH emphasized that access providers are not obliged to conduct more extensive investigations than the rights holders themselves. Providers must tolerate a blocking measure only where it is apparent that the priority of pursuing the direct infringers has been exhausted.
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Effects on rights holders and providers
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The decision sharpens the delineation of areas of responsibility between rights holders and access providers. It specifies that network blocking measures to protect intellectual property may be considered, but only after a comprehensive review of all available alternative legal remedies and demonstration that direct measures against the primary infringers have completely failed. Rights holders are thereby subject to an extensive duty of active enforcement against the actual infringers.
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Significance for practice
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With these standards, the Federal Court of Justice provides clarity as to the scope of the claim for network blocking in connection with copyright infringements and emphasizes the special duty of care on the part of claimants in advance. The judgment is likely to gain increased significance for rights holders, internet service providers, and affected companies, as the requirements for substantiating specific investigative actions and providing evidence in the individual case increase.
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Should further questions arise in connection with the enforcement or defence of copyright claims, the law firm MTR Legal offers individual support and comprehensive information on the topic. Interested parties can learn more under Legal advice in copyright law.
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