One of the core problems of German Internet law today is the question of whether, and, if yes, under which conditions, Internet providers of all kinds can be held liable for content published by their users (or embedded by them). The issue arises for content communities (think YouTube), Internet forums, blogs (thing embedded content and user comments), wikis, social networking sites (you know who), but poses the same questions for “generic” host providers or sharehosters (I hardly dare write the word).In Germany the liability of Internet providers is regulated by the “Telemediengesetz” (“TMG”; sometimes translated as “Telemedia Act”). The TMG itself does not establish liability, but modifies the general rules that can be found in countless corners of (other) Germany’s statutory law. According to the TMG, providers are fully responsible for any content published by them. But do not get confused here: This only means that as long as a provider publishes his own content there are no particularities terms of liability (you created it, it’s yours, and you’re liable if you break the law with it).

Now, though, comes the big HOWEVER: Things get complicated as soon as you’re talking about third party content. According to the rules of TMG (section 10), “the provider” is not responsible for information (i.e. content) that he stores for his users as long as he has no knowledge of the unlawfulness of the content and does not know any facts or circumstances from which the unlawfulness is apparent. If the provider, in addition, is “neutral” to the content, he is (or should be, rather) safe. It is (or should be) only when he leaves his “neutral position” and acquires knowledge of certain content or takes (not only technical) control over it, that he lapses the privilege of not being liable.

1. What is “Neutral”?

The term “neutral” is not easy to fill with meaning, though. The sole fact that, for example, a host provider charges for his services does not mean that he forfeits his privilege. On the other hand, some German courts have decided that, for example, sharehosters cannot be seen as “neutral” in terms of the law as their business model, the core and structure of the business model, brings with it the risk that their users use the services for all kinds of large scale copyright infringements. As per those courts (the Duesseldorf courts, for example, are much more lenient), sharehosting providers cannot rely on their “neutrality” and, accordingly, are fully responsible for any data/content stored on their servers.

2. The “Cease-and-Desist” Trap

In addition, there is a “German peculiarity”, shall we say, in terms of what “liability for content” means and leads to. “Liability” can, of course, mean having to pay damages and provide the plaintiff with all necessary information to be able to calculate the damages (by way of using a license analogy). First and foremost, however, court proceedings in third party content cases revolve around what we call “Unterlassungsanspruch”, badly translated as “cease-and-desist claim”. The Unterlassungsanspruch is something to behold. It not only means that you obliged to take the offending content off the Internet, your servers etc. If you want to fulfill a “cease-and desist” claim, you effectively have to take all reasonable steps within your power to prevent the offending content (or even content that is just (very) similar to the offending content) to re-enter your site – no matter by which user – and undertake to pay a (contractual) penalty if it does happen again and you have “acted negligently” (i.e. have not done enough to prevent it from happening – you effectively have to prove your innocence).

3. How does the “Unterlassungsanspruch” Come About?

Now, it is true that above we said that normally a provider is not responsible for the content he stores for his users as long as he doesn’t know that the content is unlawful. However, the “as long as he doesn’t know“ part is the problem. Because if you’ve been informed, then…- then what?

In line with its jurisdiction for the last 10 odd years, the German Supreme Court (also referred to as Federal Court of Justice; “BGH”) in its recently issued decision in re “Blogspot” has held that a host provider can (only) become liable for user content after having been informed of the particular content in question. Sounds simple enough: No knowledge, no problem. After having been sufficiently informed of the illegal content, however, the provider has to act. Fair deal, right? It’s called Notice and Take Down, a well-known principle all over the world.

Well, the trouble is: This is not yet the end of the story in our German legal system. Whereas in other countries the providers do not have to do any more than taking the illegal material down, in Germany they also have to make sure that the offending content (and/or (very) similar content) is never be published on the provider’s website/through the provider’s servers again. Obviously, this requirement is very, very hard to meet. Regardless, if you don’t meet it, if you fail and did not take all “reasonable measures”, you enter the “liability zone”.

How far this obligation to prevent future violations actually goes, and what measures can be reasonably expected, is still at the center of a highly controversial in case law and legal literature. The core criterion is that of “reasonableness”, because, according to the BGH providers (as a matter of principle; there may be exceptions) cannot be forced to give up their business models or to take disproportionate measures in order to prevent infringements by their users. What actions the host provider must take to fulfill his obligation can only be answered with regard to the specific circumstances of each individual case and only with respect to the specific kind of infringement.

And it becomes even more complicated: In the freedom of speech issues, in most cases there will not be any actual duty to prevent future offences. In trademark and copyright cases, where “filter” systems may at least to an extent verify violations on an automated basis, providers may be expected to at least apply such filters and do some additional checking by hand. However, as the lawfulness or unlawfulness of a “speech” can only be judged with respect to the specific context of the speech, filter systems that are able to take into account such complex contextual considerations simply don’t exist (currently, and, hopefully, never).

When the courts started being bombarded with third party content liability cases some 10 years back, one would have maybe though that the courts would get a grip on it and develop clear rules and guidelines, and expectations, that Internet providers can follow. It has happened to some extent – but with the technology available moving forward at light speed and ever evolving new business models (think Tumblr, for example, a copyright infringement paradise from a German law perspective), the courts still play catch up.