Berlin Regional Court, 27 April 2010, Ref.: 27 O 190/10
Time and again, website operators are held liable for the content of their own or third-party websites. Many questions in this area remain unanswered and there is little legal certainty.
The Telemedia Act (TMG) regulates the fundamental questions on this topic. The basis for claims for damages or injunctive relief can then be found in the Copyright Act, Trademark Act, Distance Selling Act, Act Against Unfair Competition or in the German Civil Code. When it comes to liability on the Internet, a rough distinction must be made between liability for own content and liability for third-party content.
FactsThe defendant operated a website on which he had set up an RSS feed, a so-called "social news service". Via this RSS feed, the defendant disseminated the message on his website that the plaintiff had a liaison with a well-known basketball player. The plaintiff felt that her personal rights and privacy had been violated in this respect and initially demanded that the defendant refrain from disseminating this report as part of the preliminary injunction. The defendant also had passive legitimacy in this respect because it had its own teaser ("teaser", which functions on the homepage as an introduction to the detailed article on a subsequent website) and disseminated the news with its own headline and slightly modified text. The preliminary injunction was successful.
LG BerlinThe Berlin Regional Court confirmed the interim injunction and considered a claim pursuant to §§ 823, analogue 1004 para. 1 sentence 2 BGB in conjunction with Art. 1, 2 para. 1 GG to be given due to violation of the plaintiff's right of personality. There was no special claim under the Telemedia Act, but the liability for interference followed from the general principles under Section 1004 BGB. Unlike in previous cases, the defendant had also acted as "master of the offer" here, as he had written and posted the teaser of the message himself. The succinct reference to a disclaimer for the content of the RSS feed did not allow him to seriously distance himself from the content of his website.
Source: Berlin Regional Court
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