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German high court establishes online libel rules

The Federal Court of Justice has ruled that foreign companies can be held liable for content that appears on German websites. It has also set out steps online services need to follow when it comes to libel accusations.

Federal Court of Justice

The Federal Court of Justice found that German law applies in the libel case against Google

The German Federal Court of Justice in Karlsruhe ruled on Tuesday that German law applies in an online libel case involving German-language content posted to Blogspot, a blogging service owned by Google. The court also remanded the question of Google's liability with respect to the libel allegations back to the state court in Hamburg.

The decision could have wide-reaching implications for online service providers that operate in Germany. The same court last year ruled the American newspaper The New York Times can be sued in Germany over statements on the newspaper's website if there is a strong connection to the country in an article.

In late September, the Karlsruhe court, which is the country's highest criminal court, heard a case argued between an anonymous plaintiff and Google. A German man sued Google over a Blogspot blog entry claiming that he used a business credit card to pay for "sex club bills."

The blog was generally about life on the Spanish island of Mallorca, where the plaintiff resided.

"Google is pleased that the decision from the Federal Court specified the standards [of] how hosting providers deal with future complaints," wrote Arnd Haller, Google's general counsel for Germany, in a German-language statement sent to Deutsche Welle by e-mail.

"The court has confirmed that neutral services like Google are not obligated to pre-check the legality of content stored with a hosting service. There is also not an obligation on the part of Google to be 'on call' for people who feel their rights have been infringed upon to remove statements of fact. In this regard, Google was concerned that such an obligation would be dangerous to freedom of expression and information on the Internet."

Google lost two lower court decisions


Google lost two previous decisions in this case

Google argued that German law did not apply in this situation as Google is an American company, but the court rejected this argument as two previous courts had also done.

The Karlsruhe court clarified the rules in such a situation, saying that "the first complaint of the person concerned is to be forwarded to the person responsible for the blog entry [to comment on it]."

If the person does not respond to the potentially libelous statements "within a reasonable time," then it can be assumed that the charges are true. But if the accused does complain, the author must provide further evidence to support the statement.

The court added that if the author does not provide evidence of the claim - in this case, that the accused used a business credit card for sex club bills - then, there is an "unlawful violation of personal rights," and the service must "delete the entry objected to."

The Federal Court of Justice has remanded the second part of the case - whether Google is liable for these potentially libelous statements - back to the high court in Hamburg to see if Google followed this procedure.

A surge of 'precautionary deletion'?

Markus Beckedahl criticized the court's decision

Markus Beckedahl criticized the court's decision

There was a mixed reaction from the European Internet activist community.

"We criticize the Federal Court's decision to make platform-providers liable for user-generated content, as it forces providers to act as judges in order to avoid prosecution themselves," wrote Markus Beckedahl, chairman of the German digital rights advocacy group digitale Gesellschaft. "However, we acknowledge that the court has defined strict requirements for this liability, that aim at safeguarding free speech."

Many Internet activists remain concerned, however, that the ruling could have a chilling effect of online speech.

"This can only logically lead to precautionary deletion of innocent blogs and websites and contravene fundamental rights, wrote Joe McNamee, of European Digital Rights, a Brussels-based Internet activist group, in an e-mail to Deutsche Welle.

Viktor Mayer-Schönberger

Viktor Mayer-Schönberger said the ruling was fair and predictable

"Such rulings are of major importance for society as a whole because undermining the legal certainty of Internet intermediaries will - and does, in many European countries - lead to innocent material being deleted as a precaution against strict liability rules. This ruling is about society’s rights to democracy and free speech far more than it is about the rights and obligations of one particular part of industry."

Some legal experts said the decision was expected and followed earlier legal precedents.

"[The Federal Court] affirmed jurisdiction in this case, which was to be expected, and reaffirmed that host providers can be held liable, but only under quite narrowly defined conditions," wrote Viktor Mayer-Schönberger, an Oxford Internet Institute professor in an e-mail sent to Deutsche Welle.

"They even went as far as laying out a procedure that when followed by host providers will insulate them from liability," he added. "Incidentally, this is the same procedure that lawyers, courts, and academics have been applying and writing about for a decade and a half."

Author: Cyrus Farivar

Editor: Sean Sinico

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