Former German ruling on liability of forum operators reviewed

By EDRi · June 21, 2006

A previous ruling of the Hamburg court that made moderators of internet
forums liable for content posted on their sites is now contradicted by the
Intermediate Court of Appeals in Dusseldorf which has ruled that forum
operators are obligated to delete illegal comments made by their users only
in case they know about them.

The ruling of the German Supreme Court of 2004 obliged the forum operators
to prevent illegal content posted by their users but did not bind them to
review all comments before being placed online. However, in the Heise
Zeitschriften Verlag case, the Hamburg court ruled against Heise, asking
from the publisher to monitor the content before it appeared online.

The Hamburg court had required the operator to “either increase its funding
or limit […] its operations” in order to review all postings before
publishing them online.

In the case of a person having been repeatedly insulted on a forum who filed
a temporary restraining order, the appeal court of Dusseldorf overruled the
decision of the first-instance court to issue the order, considered that
monitoring all postings would have required unreasonable efforts from the
forum operator from the financial as well as human resources point of view.

It is not expected from the operators to actively look for breaches of the
law or to monitor all postings. However, they have the obligation to delete
or block comments about which complaints have been made.

Also the Dusseldorf judges believed that the technical filtering solutions
were not effective in blocking illegal contents.”While a search for certain
key words might be simple from the technical point of view and would even
help combat violations of trademark, in light of the almost infinite number
of ways that people can formulate insults such filters would not be very
practical in the prosecution of violations of personal rights.”

First-instance district court of Hamburg says forum operators are liable for
comments (18.04.2006)

German court rules moderators liable for forum comments (21.04.2006)

Court rules that prior review of forum comments is unreasonable (15.06.2006)

EDRi-gram : Hamburg court rules against forum providers (26.04.2006)