By judgement dated 13 October 2022 (docket No. I ZR 111/21), the Federal Court of Justice [Bundesgerichtshof, BGH] rejected the claim of several scientific publishers against Telekom to have various websites blocked. Before enforcing a network or DNS block against the access provider pursuant to Sec. 7 (4) sentence 1 of the German Telemedia Act [Telemediengesetz, TMG], it is reasonable for parties concerned to take action against the operator of the website or the host provider in interim relief proceedings.
Websites made copyrighted content available
According to the plaintiffs, the websites in question had made available literature in which scientific publishers from the USA, Great Britain and Germany exclusively hold the rights of use. The operators of the websites could not be identified because their whereabouts are unknown and attempts by US courts to enforce judgements against them were unsuccessful. Out-of-court measures and attempts such as warning letters to the Swedish-based host provider requiring it to identify the operators of the website had also failed. As access provider of the two websites, Telekom should therefore block the use of information pursuant to Sec. 7 (4) TMG. Whilst the Munich Regional Court I affirmed such claim to blocking in the first instance, in the second instance the Munich Higher Regional Court held that not all measures that could reasonably be expected of the plaintiffs had been exhausted. This view is now also shared by the BGH, referring in particular to the possibility of interim relief proceedings.
Interim relief before the German courts reasonable
It was reasonable and also proportionate for the plaintiffs to bring interim relief proceedings against the host provider before a German court in order to obtain information.
Blocking as the ultima ratio
When blocking is appropriate and proportionate within the meaning of Sec. 7 (4) TMG must be examined on a case-by-case basis. As a rule, however, before applying for blocking, the holder of the right not only has to take measures to obtain information and settle the dispute out of court, but also seek appropriate means of interim relief. If the operator of the disputed website or the host provider has its registered office in the EU, the interim relief proceedings against the operator of the website or host provider are definitely reasonable before a German court. Blocking pursuant to Sec. 7 (4) TMG is only the ultima ratio.
Practical consequences
Holders of rights therefore fundamentally have to take action against the operators of a website and the host provider if they are based in the EU. For information claims against operators of websites and host providers located outside the EU, court action by way of summary proceedings may not be necessary.
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