On 26 November 2015, the German Federal Court of Justice ruled that Internet access providers (IAP) can be liable for copyright infringements on third parties’ websites and can thus be ordered to block access to such websites. This shall only be the case, however, if the copyright holders have exhausted all reasonable steps to enforce their rights against the website operator and the host provider.

BACKGROUND -

Whether an IAP should be obliged to prevent its users from accessing websites that contain illegal content or unauthorized download links to copyright-protected works is a highly controversial matter in Germany and Europe. Although the EU Directive 2001/29/EC since 2001 provides in its Article 8 (3) that “Member States shall ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right”, the German legislator did not see any need for implementing Article 8 (3), as in its view, the German Copyright Act already provided for sufficient measures. Two main arguments were brought against such obligation of IAPs: (1) The blocking of a website would also lead to the blocking of any legal content on such website (so called “overblocking”), which could be considered censorship that is in principle prohibited by the German constitution; and (2) the blocking of a website could in any case not prevent Internet users from accessing such websites, since there are several technical ways to work around the blocking. The topic of website blocking was also subject to a highly controversial political discussion regarding a legislative initiative for the blocking of child porn websites that failed in the end.