With judgment dated 27 March 2012 the German Federal Court of Justice (Bundesgerichtshof, BGH) held that the provider of an information portal who puts news online that may easily be detected as third party content – in this case: RSS-feeds – is generally not required to check the articles with regard to potential rights infringements prior to publishing them.
Once the provider of an information portal has been made aware of an infringement of the personality right by the person affected the provider may be held liable to prevent such infringements in the future.
The reasons of the BGH’s decision dated are now available in German.
The case dealt with an information portal, the information being different contributions of various newspapers and other media. One feed was by bild.de (always worth a click, but maybe also browse here). Bild.de had published an article titled – in German – “Ex-terrorist H. cycles into day parole” and illustrated the article with a photo of the very ex-RAF-terrorist on day parole. This was held to be infringing ex-terrorist H.’s personality right. A respective warning notice made bild.de and later also the information portal to remove the article from the www. The court proceedings were about the costs for the warning notice.
District and Regional Court both dismissed the claim: According to the judges, just embedding RSS-feeds does not automatically lead to a liability; without cause there is no obligation to check the content for rights infringements.
In the light of two differing decisions by the Berlin Regional Court (one assuming liability for RSS-Feeds in 2010, a later one from 2011 assuming no liability) a BGH-decision was due.
As already revealed in the headline, the BGH sees no liability for RSS-feeds. Just embedding third party content does not necessarily mean that the content is automatically appropriated. Prerequisite for such a view is that the content is clearly recognizable as third party content, as was the case in the above decision where the article contained the notice “bild.de” right under the headline. The information portal in this case furthermore clearly indicated in its legal notice that it exclusively spreads third party and no own content – another clear indication against the assumption that the information portal contained own content for which it would be liable. The portal could overall be compared to a press review. Sound BGH reasoning.
Also the assumption of the BGH that there is no obligation to check the third party content in advance deserves approval. Extensive in advance checking of the single articles would not allow fast and current dissemination of news as we like it. While the provider of information portals would sit down and check every sentence of each article we may as well stroll to the next newspaper stand and browse through yesterday’s news there.
With this decision we gained some more clarity about what makes it less likely to be held liable and what does increase such danger. It seems that the court has understood the difficulties interesting web portals we like to click on once an hour are facing.