Out-Law / Your Daily Need-To-Know

German court unlikely to follow UK example on website blocking orders against ISPs, IP expert says

03 Aug 2015, 2:33 pm

The Supreme Court in Germany is unlikely to order an internet service provider (ISP) to block its customers' access to copyright-infringing material, an intellectual property law expert has said.

Igor Barabash of Pinsent Masons, the law firm behind Out-Law.com, said such an approach differs from the position in the UK where website blocking injunctions are available, and have already been issued in number of instances, under UK copyright laws.

Music rights collecting society GEMA has asked the Supreme Court to order Deutsche Telekom to block its customers' access to 3dl.am, a website hosted in Armenia that allegedly enables users to download copyright-infringing music files.

The Supreme Court is expected to decide on the case in November, according to a report on the case on its website.

"German law makers and courts have been quite liberal on the issue of service providers' responsibilities for policing illegal online content," Barabash said. "This is reflected in the German Telemedia Act where the general position is that service providers that neither publish nor host information but instead just provide access are not responsible for that information, although some exceptions apply. This includes where service providers have knowledge that they are facilitating access to infringing material."

"Whilst UK courts have issued a number of website blocking injunctions to ISPs upon the request of rights holders following the ground-breaking ruling in the Newzbin 2 case in 2011, no such injunctions have been issued against service providers in Germany. This reflects the broad policy in the country that the problem of infringing content should be tackled at source. This policy was a major factor in the abolition of German laws which previously required ISPs to block access to child pornography," Barabash said.

"Privacy issues are also a consideration in any website blocking order, as the technical implementation of that order will involve ISPs having to check what sites their customers are seeking to access. There are major restrictions on the collection and storage of this information in Germany. For these reasons we can expect the Supreme Court to reject GEMA's case," he said.

Barabash said that the issue of whether to include new website blocking regulations in a revised EU copyright law framework is likely to be subject to major debate when proposals for reform are tabled. The European Commission has outlined its intention to set out proposals to modernise and harmonise EU copyright laws before the end of 2015.