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As far as can be seen, the Regional Court of Cologne was the first court of first instance to follow the Federal Court of Justice in preliminary injunction proceedings, according to which it is sufficient for German courts to have international jurisdiction for copyright infringement proceedings that the relevant website is (also) accessible in Germany.
This facilitates the enforcement of copyright claims by German rights holders, particularly against the big players on the Internet, most of whom are based in the beautiful California in the USA.
Blackmail platform Wordpress
The applicant had discovered that an unknown third party had published numerous hair-raising criminal allegations in English on the blog and website hosting service Wordpress operated by Automattic, Inc. The offences allegedly committed by the applicant ranged from mere ‘fraud’ to serial fraud, money laundering and child pornography (!).
However, not only the applicant himself, but also his entire family was similarly criminal. The insults were illustrated with photos of the applicant and the family members who were also insulted.
Something will stick
No matter how abstruse or implausible the allegations may be on closer inspection: websites designed and optimised in this way achieve impressive search results on Google when the name of the person concerned is entered, which do not fail to have an effect. Who wants to be found on Google with the search term ‘child porn’? The motto is: a bit of dirt always sticks.
It is not uncommon for the publicly vilified person to receive more or less well-disguised attempts at blackmail shortly after this type of publication. For example, a ‘PR agency’ then informs you that it has noticed that the reputation management of the person concerned on the Internet is in need of improvement. They could take on this task for a not inconsiderable fee. If the potential for damage – for example in the financial sector – is particularly high, sums of up to €100,000 – not just once, but per month – are often demanded for the ‘services’.
Wordpress usually does not respond to deletion requests
As a rule, cases of this kind are legally self-evident. It is obvious that public statements of fact that are untrue, especially those with criminal implications, must be refrained from. Of course, the perpetrators are also aware of this. They therefore try to place as many factual and procedural obstacles as possible in the way of the person concerned and thus prevent them from obtaining effective legal protection before their home courts.
Wordpress is not only very well suited for this because the operator is based in San Francisco, USA, but also because it is known for regularly hiding behind automatically generated emails and the ‘Freedom of Speech’, even in the case of very clear legal violations.
Previously, a domestic connection had to be demonstrated
Previous case law made it easy for offenders. This is because the rights holder had to prove – at least until 2016 – that the website on which the infringement took place was a copyrighted website, as intended could also be accessed in Germany. The mere retrievability of the page was not sufficient. The rights holder therefore regularly had to laboriously demonstrate on the basis of objective evidence that the website was also intended to address German users.
Previous case law had strange consequences
This has often led to absurd constellations. For example, in a case conducted by our law firm 11 years ago, the Cologne Higher Regional Court ruled that the German rights holder could not assert an unauthorised use of photos on a website with the top-level domain ‘uk’, United Kingdom, before German courts, even though the advertised products could be paid for in euros and were delivered worldwide, simply because the German language could not be selected there (Cologne Higher Regional Court, decision of 30 October 2007, ref. 6 W 161/07, GRUR-RR 2008, 71).
This is now a thing of the past in copyright law
In April 2016, the Federal Court of Justice (BGH, judgement of 21 April 2016, Az- I ZR 43/14) ruled that the place of performance of a tortious act within the meaning of Section 32 ZPO in the case of an alleged infringement of copyright or related rights by making the protected subject matter publicly available via a website is located in Germany if the asserted rights are protected in Germany and the website is (also) publicly accessible in Germany.
With its decision, the BGH departs from the view it still held in 2010. (vgl. BGH, Urteil v. 29.4.2010, Az. I ZR 69/08, BGHZ 185, 291 Rn. 14 – Vorschaubilder I) having regard to the case law of the Court of Justice of the European Union on jurisdiction for actions for infringement of copyright or related rights under Art. 5 No. 3 Brussels I Regulation (jetzt Art. 7 Nr. 2 Brüssel-Ia-VO) from (vgl. EuGH, Urteil v. 3.10.2013, Az. C-170/12, GRUR 2014, 100 Rn. 42 = WRP 2013, 1456 – Pinckney/Mediatech; Urteil v. 22.1.2015, Az. C-441/13, GRUR 2015, 296 Rn. 32 = WRP 2015, 332 – Hejduk/EnergieAgentur).
There, the ECJ held that, in the event of an infringement of copyright and related rights guaranteed by the Member State of the court seised, that court has jurisdiction, based on the place where the damage occurred, to hear an action for damages for infringement of those rights by the publication of protected photographs on a website accessible in its territory. However, that court has jurisdiction only to rule on the damage caused in the territory of the Member State to which it belongs.
Without explaining its decision in more detail at this point, the BGH logically assumes that this also applies to claims for injunctive relief. While the ECJ must expressly state that the court seised can only rule on local damages, the limited effect of an injunction tensor is a straightforward consequence of the territorial jurisdiction of that court.
This means nothing less than that any infringement on the Internet, regardless of the top-level domain or language, can now be challenged in Germany by way of an injunction.
The Cologne Regional Court agrees with the BGH
One would think that the lower courts would not only take note of the BGH’s decision, but would also implement it immediately. Far from it. For a good two years now, we have been arguing on behalf of our clients before a wide variety of courts throughout Germany and have so far consistently failed with this argument – even though we have usually been able to convince the courts of their jurisdiction with other geographical points of contact.
That’s different now – at least in Cologne (LG Köln, Beschluss v. 14.8.2018, Az. 14 O 271/18).
The competent chamber states the following in this regard:
(…) Accordingly, the international jurisdiction of German courts is established for the injunctive relief sought in the preliminary injunction proceedings. The The claimant is suing the defendant – based in California – for alleged infringement of a neighbouring right of the performer existing in Germany for injunctive relief to make certain photographs publicly accessible or display them in Germany. In the case of an alleged infringement of copyright or related rights by making the protected subject matter publicly available via a website, the place of success of an unauthorised act within the meaning of Section 32 ZPO is located in Germany if the asserted rights are protected in Germany and the website is (also) publicly accessible in Germany. However, it is not necessary that the website can (also) be accessed in Germany as intended.
His dissenting opinion (vgl. BGH, Urteil vom 29. April 2010 – I ZR 69/08, BGHZ 185, 291 Rn. 14 – Vorschaubilder I) with regard to the case law of the Court of Justice of the European Union on jurisdiction for actions for infringement of copyright or related rights under Art. 5 No. 3 Brussels I Regulation (jetzt Art. 7 Nr. 2 Brüssel-Ia-VO) nicht fest (vgl. EuGH, Urteil vom 3. Oktober 2013 – C-170/12, GRUR 2014, 100 Rn. 42 = WRP 2013, 1456 – Pinckney/Mediatech; Urteil vom 22. Januar 2015 – C-441/13, GRUR 2015, 296 Rn. 32 = WRP 2015, 332 – Hejduk/EnergieAgentur; offengelassen für Markenverletzungen BGH, Urteil vom 5. März 2015 – I ZR 161/13, GRUR 2015, 1004 Rn. 15 = WRP 2015, 1219 – IPS/ISP; zu Wettbewerbsverletzungen vgl. BGH, Urteil vom 19. März 2015 – I ZR 94/13, GRUR 2015, 1129 Rn. 12 = WRP 2015, 1326 – Hotelbewertungsportal).
This principle does not apply to competition law…
The BGH has so far left this question open for trade mark law (BGH, Urteil vom 5.3.2015 – I ZR 161/13, GRUR 2015, 1004 Rn. 15 = WRP 2015, 1219 – IPS/ISP). These principles are unlikely to be applicable to infringements of competition law, as the market place principle applies here, against the background of which an infringement of competition law is generally only ever assumed where the interests of the competitors concerned may clash (vgl. BGH, Urteil v. 19.3. 2015, Az. I ZR 94/13, GRUR 2015, 1129 Rn. 12 = WRP 2015, 1326 – Hotelbewertungsportal).
…but for the right of personality
The Federal Court of Justice will probably also have to consistently deviate from its previous opinion with regard to personal rights. Following the ‘New York Times’ decision of the Federal Court of Justice – which is often misunderstood by courts of lower instances anyway (BGH, Urteil v. 2.3.2010, Az. VI ZR 23/09, GRUR 2010, 461, 463) German courts only had jurisdiction,
‘…if the content objected to as infringing objectively has a clear connection to Germany in the sense that a collision of the conflicting interests – the plaintiff’s interest in respecting his right of personality on the one hand, the defendant’s interest in the design of his website and in reporting on the other – can actually have occurred or can occur in Germany according to the circumstances of the specific case, in particular due to the content of the objectionable message.’
Even this somewhat cryptic definition is now outdated.
This is because the ECJ has also ruled that an action for damages can also be brought before the courts of any Member State in whose territory content published on the Internet is or was accessible for violations of personality rights (EuGH, Urteil vom 25.10.2011, Az. – C-509/09 und C-161/10 eDate Advertising GmbH/X und Martinez/MGN Ltd.).
Conclusion:
The decision of the Federal Court of Justice adapted by the Regional Court of Cologne is highly interesting for the increasingly frequent lawsuits against Google or other foreign providers. It is to be hoped that – as should be a matter of course – other lower courts will follow the supreme court’s judgement.
Even if a German judgement is often not directly enforceable abroad, especially in countries outside the European Union, it can be useful to obtain a corresponding title. Although this is only valid directly between the parties to the dispute, it can also be presented to third parties, such as host providers and, not least, search engine operators such as Google, to illustrate the legal situation or to prove that a German court has already judged the behaviour to be unlawful. As soon as they become aware of an infringement of the law, they are in any case liable as a disturber for injunctive relief and possibly even for damages.
Last but not least, it can of course also be useful to inform business partners that the statements circulating on the Internet are not only – judicially established – untrue, but that he will also defend himself resolutely against them.
(Disclosure: Our law firm represented the applicant).
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