New German court decision on traffic filtering

By EDRi · March 28, 2012

This article is also available in:
Deutsch: [Deutsches Gericht entscheidet über Netzfilter |]

A Higher Regional Court in Hamburg ruled on 14 March 2012 that the
file-hosting site RapidShare had to proactively filter the files uploaded by
its users. A court’s press release stated RapidShare was required to block
its users from uploading a list of 4 000 files allegedly infringing

The present ruling comes to confirm three separate previous rulings by a
lower court in cases brought by German booksellers, book publishers and a
music rights group. “The judgement confirms that Rapidshare must take
effective measures against the use of illegal content on its service,” said
a German bookseller’s association.

RapidShare’s spokesman Daniel Raimer explained that the copyright holders
were leaving out essential details of the court ruling that were actually
quite positive for the site. “There is a possible reason for the rushed
approach, particularly that of the Booksellers Association. In the hearing,
the Higher Regional Court indicated that it would deviate from its former
position under which RapidShare’s business model was not tolerated by the
legal system.”

The German verdict appears to be in contradiction with a ruling by the
European Court of Justice (ECJ) which ruled in February 2012 in the case
Sabam vs. Netlog that hosting sites could not proactively filter copyrighted
content because that would violate the users’ privacy and hinder freedom of

ECJ decided that a national court is precluded from issuing an injunction
against a hosting service provider which requires it to install a filtering
system “capable of identifying electronic files containing musical,
cinematographic or audio-visual work in respect of which the applicant for
the injunction claims to hold intellectual property rights, with a view to
preventing those works from being made available to the public in breach of
copyright” with the purpose to filter information “which is stored on its
servers by its service users; which applies indiscriminately to all of the
users as a preventative measure; exclusively at its expense and for an
unlimited period”

RapidShare has not yet decided whether it would appeal the verdict and is
probably waiting for the written decision to be made public.

Court Orders RapidShare to Filter User Uploads (15.03.2012)

Copyright Illegal Downloads: Higher Regional Court of Hamburg decides duties
for the online storage service “Rapidshare” (only in German, 15.03.2012)

German court orders Rapidshare to filter user uploads (19.03.2012)

ECJ – Judegement Sabam vs Netlog (16.02.2012)