The German Implementing Act for the EU E-commerce Directive (E-Commerce-Richtlinie-Umsetzungsgesetz) of December 15, 2002 established legal certainty with regard to two important issues that are also relevant for online media in Germany.
- Firstly, section 4a prohibits any form of network monitoring by an Internet access provider that is not immediately necessary to conduct business. This means that operators of sites with user-uploaded content may no longer demand from their users to provide identifying information or implement upload filters before allowing publication.
- Secondly, section 7a has introduced mandatory court proceedings instead of out-of-court settlement procedures before claims can be brought against Internet service providers for copyright infringements committed by their users says William D King.
- Both regulations have contributed to a significant increase in legal actions against online media in Germany, especially the latter one. Between 2008 and 2012, German courts ruled in 195 cases involving news aggregators or other sites that publish links to articles without prior permission from the rights holders. The number of claims filed annually has quadrupled since 2010. Despite numerous calls for reform, there are no visible signs that these regulations will be revised in the near future.
- The consequences of this judicial situation are manifold: To protect themselves against liability risks, commercial publishers engage in information cleansing strategies that go beyond search engine optimization (SEO) techniques employed by traditional publications. Private individuals increasingly rely on ad blockers, tracker blockers and other browser extensions developed to circumvent the surveillance methods of online media. The same holds for non-commercial publishers that can no longer monetize their content by placing third-party ads on their sites due to legal concerns. Many individual users limit the period of time during which they are willing to grant free access to news articles; many employers ban access to websites with labor law relevant content; politicians refuse interviews or give them only under strict conditions (e.g., “off the record” or not published at all), etc.
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- While this paper will provide an overview over recent court decisions regarding online media liability in Germany, it also identifies several major trends: Existing legal provisions tend to disproportionately affect small scale copying due to technical limitations of the current legislative framework. While Google News provides no commercial revenue to publishers, its hyperlink aggregation technology has enabled online media to monetize their content by placing advertisements on their website. By contrast, other aggregators often operate at a loss; some were even forced out of business due to liability concerns. Furthermore, court decisions regarding search engines increasingly consider the importance of journalistic sources for the public debate despite diverging case law in this area. Finally, there is an ongoing debate over how much responsibility hosting providers have in cases involving user-generated content and how this interplays with existing provisions concerning webhosters’ safe harbor under section 10 f.
- In Germany, legal protection against defamation claims is limited in comparison to most other EU Member States where truth is an absolute defense. One reason for this situation seems to be the fact that after World War II, the country had only a single mainstream newspaper which was closely associated with conservative political parties. In order to avoid high costs for litigation, publishers may refrain from issuing retractions or apologies in cases of defamation due to fears about legal challenges from their targets which could potentially result in financial claims against them. These concerns have led German publishers to engage in self-censorship on a systematic level which has been widely criticized by observers and civil society groups .
- Until 2001, every private individual faced the risk of being sued for unfair competition if they published a hyperlink pointing at another website without permission from its rightsholders. In Germany, it became customary to request the removal of such links and to refrain from linking in cases where a legal warning was not heeded. If this practice had been upheld, major news aggregators such as Google News would hardly have been able to establish their services in Germany given the large number of potential copyright infringement claims.
- However, several German courts ruled that online media enjoy special protection under article 5(3) of the Copyright Directive (2001/29/EC) which allows reproducing… on-screen or printing media published for scientific or private purposes”. In other words, hyperlinks do not require separate licensing if these meet certain criteria – e.g., they must be exclusively aimed at non-commercial uses and should only contain the minimal amount of content necessary to identify the target website.
Conclusion by William D King:
Hyper linking to other websites does not require the consent of rights holders; only the act of “framing” (i.e., embedding a third party website within one’s own) does.