Another German decision questions reasonableness of GS Media presumption if generally applied

A few weeks ago this blog reported on the judgment of the German Federal Court of Justice which decided that the presumption of knowledge envisaged by the Court of Justice of the European Union (CJEU) in GS Media [Katposts here] for for-profit link providers would not be applicable to search engines due to their importance to the functioning of the internet.

I have been made aware that this decision is not an isolated instance, and a similar line of reasoning can be found also in another recent German judgment, ie the one of the Regional Court of Hamburg issued earlier this year (308 O 151/17). Also this ruling shows a certain disagreement with recent CJEU case law on the right of communication to the public, including in the linking context, and warns against the dangers of intending the GS Media presumption of knowledge in too a broad sense.

Background

The decision orginated in the context of proceedings brought against the operator of a product search engine which lists furniture and home accessories for sale. The results are obtained by aggregating the listings of over 200 online shops. Further to a certain search, the defendant’s site displays results which consists of photographs (stored on third-party sites) of relevant products and links to the various listings.

The claimant operates an internet site on which it offers photos and products displayed by photos depicting a pug dog named Loulou, including the photograph below (to which it owns the copyright):

Use of the photograph above is licensed to third parties. One day, the claimant found out that the defendant's website displayed among the various results also a listing for a cushion (available for sale on Amazon) that reproduced - without its permission - the Loulou photograph above:

The claimant submitted that, by displaying this result, the defendant made an unauthorised act of communication to the public pursuant to §§ 15(2) UrhG and 19a UrhG. 

Being a for-profit undertaking, according to the claimant, the defendant had an obligation to ensure that the links displayed through its search engine would be to lawful content.

The decision

The Hamburg court dismissed the action, holding that the simple linking of a work hosted on a third-party site by way of 'framing' does not constitute an act of making available to the public within §19a UrhG. Referring to the decisions in Die Realität I and II, according to the court this is so because it is the operator of the third-party site that decides on the making available of the work at issue. 

Accordingly, the only provision that might come into consideration is the 'unnamed' right of communication to the public within §15(2) UrhG. To determine whether that would be actually the case, the court deemed it necessary to review relevant CJEU case law on Article 3(1) of the InfoSoc Directive.

The Hamburg court recalled the requirements of (1) an act of communication (2) directed to a public, as well as the other interdependent criteria employed by the CJEU and the 'indispensable intervention' of the user. The court then focused on the GS Media presumption of knowledge for link providers that act with a profit-making intention.

The court excluded that there would be a communication to the public in the case at issue. Although the requirement of the 'new public' was met, the act at issue would not take place with the indispensable intervention of the defendant, ie - as the CJEU held in Filmspeler [here] - an intervention made “with full knowledge of the consequences” of such conduct. 

According to the Hamburg court, the defendant in this case - although operating for a profit - had neither positive knowledge of the unlawfulness of the offer displayed through its search engine, nor could it have acquired knowledge of the offer’s unlawfulness in a reasonable way. The court also noted that a platform like Amazon is not usually associated with unlawful listings.

The links displayed were created through a completely automated process and the relevant offers were not subject to any editing or other manual control. This means that it cannot be assumed that the defendant had knowledge that the offer at issue incorporated content that would infringe the claimant's rights. 

In addition, upon becoming aware of the unlawfulness of the listing, the defendant promptly removed it. 

According to the court, considering that the defendant's databank contains 50 million offers, it would be unreasonable to expect that every single link is checked beforehand. In the event of (several) completely automated processes it cannot be expected that the GS Media presumption operates in relation to each and every link. Referring to the Opinion of Advocate General Szpunar in Ziggo [here], the Hamburg court held that holding otherwise would extend liability to every imaginable far-removed contribution due to negligible lack of knowledge and, therefore, on the basis of merely fictitious intention. 

The court added that any different interpretation would also result in an undue compression of one's own freedom to conduct a business, as per Article 16 of the Charter of Fundamental Rights of the European Union.

As to whether things would change in the event that the link provider adopts third-party content as its own (which in any case was not what happened here), the court stated that this remains uncertain at the EU level. 

Comment

The decision of the Hamburg court, similarly to the one of the Federal Court of Justice, warns against an overly broad understanding of both communication to the public and the obligations imposed on link providers that operate for profit, especially if these handle a high number of links. 

Some aspects of the CJEU judgments discussed by the German courts are ambiguous and in need of further clarification. One might wonder whether national courts are best placed to carry out such an explanatory task or whether, instead, clarification at the CJEU level might be a better option to avoid inconsistent applications of relevant judgments by national courts.