German ruling on 'cease and desist' obligations lacks clarity for website operators, says expert

The Higher Regional Court of Celle's judgment, however, does not make it clear if website operators need to take similar steps to remove references to the unlawful content on other search engines or online archive services, Munich-based technology law expert Igor Barabash of Pinsent Masons, the law firm behind Out-Law.com, said.

The case before the Celle court concerned the use of a photograph on a website. The copyright owner claimed the use was unlicensed and sent a 'cease and desist' letter asking the website operator to remove it from the site. The website operator removed the image from their website homepage and signed an agreement that they would pay a penalty if they breached the cease and desist obligation.

The agreement did not only bind the website operator to avoid violation of the copyright owner's rights through re-publication of the photo on the website but to also avoid other violations that were "essentially the same".

The copyright owner claimed that internet users could still access the website operator's web page featuring the photo via Google's cache and that therefore the website operator had breached their cease and desist agreement. The website operator was liable to pay the contractual penalty for breach, the rights holder claimed.

However, the website operator said they could not be held liable for others' hosting of the infringing content.

The Celle court ruled, though, that because the infringing content was still retrievable via Google's cache and the website operator did not try to get that content remove that the operator did culpably breach the cease and desist agreement.

The court said that online content hosts must take appropriate measures to ensure that the content affected by a cease and desist agreement cannot be accessed on the internet. It said appropriate measures include at least reviewing whether the unlawful content they have removed from their site is still retrievable on Google's search services. However, the court deemed that the website operator was liable for a low level fault in this case and reduced the penalty they were obliged to pay under contract by 50%.

Barabash said that the case law in Germany on notice and takedown issues is "quite inconsistent".

"German courts have been almost 50/50 split on the issue of whether a website operator's failure to go beyond taking down infringing material hosted on their own site constitutes a breach of a cease and desist agreement," Barabash said. "Some courts have said website operators only have to remove infringing content from the own website, but others say further steps are necessary to ensure the material is not accessible elsewhere online."

"What we have now is a very clear decision of a higher court which says that the website operator must at least submit a removal request with Google," Barabash said. "It is less clear which other online information stores need to be contacted by website operators to request removal of infringing material. The court said that it boils down to an assessment of whether it is reasonable for a website operator to approach other online information archives, but did not elaborate on this point."

"It will be very interesting to see what other courts will make of this latest decision. As for now, it is clear that Google's cache is affected. But how the ruling applies to other providers, and where the line of 'reasonableness' should be drawn will need to be interpreted further. For example, do cease and desist obligations extend to requesting removal of infringing content by the top 10 most popular search engines and archive sites? Is this unreasonable or does it not go far enough? There is not yet clarity on these issues for website operators in Germany," Barabash said.