The Court ruled that parents are not liable under parental responsibility laws for damages caused by their children using file sharing devices, if parents duly fulfill their supervisory duties. The parents’ supervisory duties towards their children depend on the childrens’ stage of development, namely their age. Parents generally comply with their supervisory duties, if they point out the legal wrong of copy right infringements on the Internet. The instructions have to take into account the child’s age and capacity of discernment. It is sufficient to instruct a normally developed 13-year-old child that generally obeys rules set by her parents that file sharing is illegal and therefore forbidden. Parents are generally not obliged to implement any technical measures to prevent children from infringing. Furthermore...
In this case, RapidShare neglected to check whether certain files violating Atari's copyright over the computer game "Alone in the dark" were stored on its servers by other users. The court acknowledged that reviewing every file that is uploaded by a user on the server would render RapidShare file-hosting service’s business impossible. Nevertheless, RapidShare should have checked its servers for similar infringing material stored by other users. Therefore, the Court noted, a hosting provider is not only required to delete files containing copyrighted material as soon as it is notified of a violation by the right holder, but must also take steps to prevent similar infringements by other users in the future. See also Husovec
Bundesgerichtshof [Federal Court of Justice of Germany], Sixth Civil Section
The Court accepted an injunction against an Internet forum operator whose user was found to commit libel on the service. The court noted that even if the operator did not breach its duty to review, the operator can be subject to injunctions for removal based on disturbance liability.
Even if there is no direct responsibility of intermediaries due to the privilege of § 10 TMG, intermediaries have a duty to prevent others from violating youth protection law and competition law using their platform. This duty for intermediaries to interpose arises from § 3 UWG, and applies when one of his users commits a certain violation by selling goods without consideration of the protection of minors law. An intermediary has to prevent other violations from the same user by increasing observation. The intermediary must prohibit and stop transactions regarding the same product. The possible remedies include injunctions and damages.
Bundesgerichtshof [Federal Court of Justice of Germany], First Civil Section
The Court confirmed that an injunction against a disturber is available when no third party infringement was committed, but is feared. The Court recalled that injunctions should not lead to “any unreasonable duties to review” and should not “challenge the entire business model” of the platform operator. It opined that an implementation of filtering software to flag objectively suspicious offers (e.g. due to low price for a certain keyword), then subsequently reviewed flagged transactions manually by employees, is a reasonable measure to make.
The Telemedia Act (Telemediengesetz, TMG) applies to all providers of electronic information and communication services, such as ISPs, to the extent that they are not providing telecommunications services. The Telemedia Act, which is based on the EU E-Commerce Directive (Directive 2000/31/EC), lists three types of service providers that are exempted from a potential liability under certain requirements (safe harbors): (1) mere access providers (Section 8 TMG), (2) caching providers (Section 9 TMG), and (3) hosting providers (Section 10 TMG). The Telemedia Act also provides that service providers in the meaning of Sections 8 to 10 are not required to monitor the information transmitted or stored by them or to search for circumstances indicating an illegal activity (Section 7 paragraph 2 TMG).