In a judgement of 13 October 2022 (I ZR 111/21) – DNS-Blocking, the German Federal Court of Justice (BGH) ruled on the conditions under which rights holders can claim blocking of access to certain websites (DNS Blocking) from Internet access providers under German law.
Background of the case
The plaintiffs (publishing houses) initiated a legal action against the defendant (an Internet access provider), demanding that the defendant blocks access to certain websites on which publications of the plaintiffs were made accessible by an unknown third party.
In a first instance judgement, the Regional Court Munich I granted the blocking claim. In appeal proceedings, the Higher Regional Court Munich overturned the first instance judgment and dismissed the action. The Higher Regional Court Munich argued that the plaintiffs had not exhausted all possible courses of action against the other parties involved, as the plaintiffs should first have asserted a claim for information against the host provider (based in Sweden) in Sweden before pursuing a claim against the access providers.
The judgment of the Federal Court of Justice
The Federal Court of Justice has now ruled that access providers, who merely provide access to the Internet, are only liable in a secondary manner to those parties who have committed the infringement themselves or contributed to it by providing services (such as host providers) that are more closely related to the infringement itself.
The Federal Court of Justice has pointed out that the level of reasonability for rights holders vis-á-vis the parties involved in an infringement has to be determined on a case-by-case basis. In general, rights holders are obliged to take reasonable efforts to identify those parties who are the perpetrators of the infringement and to first demand an out-of-court takedown against the website operators or host providers. Before bringing actions against access providers, rights holders are obliged to initiate preliminary measures against operators or host providers based in the European Union if such requests have some prospect of success.
In the present case, the Federal Court of Justice left open whether the appeal court’s assessment was correct that that the plaintiffs should have filed preliminary actions in Sweden (to the extent that such preliminary actions would be admissible in Sweden), since the plaintiffs should at least have attempted to enforce claims for information in preliminary proceedings against the Swedish host provider before German courts. Since the plaintiffs did not attempt to enforce these information claims against the host providers in Germany, the action had to be dismissed.
Take away:
In its judgment, the Federal Court of Justice once again made it clear that DNS blocking claims against access providers are generally the last resort of rights holders to stop infringements before German courts and are only available to them if the rights holders have exhausted all other options against the infringer and the host provider. Based on the list of required extrajudicial and judicial measures against these parties, DNS blocking actions against access providers will still not be a quick solution for rights holders.
