EUROPE - GERMANY / COPYRIGHT - TRADE MARKS / INTERNET

IP FORUM : PUBLICATIONS

Liability of Internet providers

Truiken Heydn

This article discusses the extent to which Internet providers may be liable for violations of copyright and trademark rights through the use of hyperlinks, deep links, inline links or frames, metatags and search engines. It refers to European Union law and to German law in particular. The author points out that "the Internet is not a law-free space … all the laws that have originally been designed for application in the real world are equally applicable in the virtual reality of cyber space. By way of example, hyperlinks provide immediate access to the content of third parties' sites; but that content may violate intellectual property rights. Deep links may in some cases be illegal. Metatags, an invisible element of a website, may enable the website operator to mislead search engines as to the real content of the website, with questionable legality. Search engines themselves not only provide access to numerous websites and are therefore particularly exposed to the risk of liability for third party content; they also collect and store data which may be subject to copyright protection. Even when the European Union's E-commerce Directive comes into force in the Member States on 17th January, 2002, there will be no uniform European standards for the liability of content providers. It does, however, govern the activities of service providers and access providers. In general, it relieves providers of liability if certain conditions are fulfilled, of which perhaps the most important is that the proprietor should not modify the information to which the user is directed. Some of the problems are illustrated by reference to German case law. In the CompuServe case, for example, the Munich district court held that CompuServe was only a service provider and was not responsible for a third party's pornographic material. This was on appeal: the author comments that "the courts apparently have difficulty in Internet cases". He adds that, in the first German case on metatags, in which judgment was given by the Mannheim district court, the court did not even mention that term. "A certain level of technical understanding is absolutely necessary to apply it the law properly. As long as lawyers refuse to take this extra step to learn something about the technical background, Internet law will remain unstructured and the outcome of cyber litigation unpredictable." [20046]