Ruling: Google liable for fraudulent ads as a disruptive party under the DSA

The Düsseldorf Regional Court has issued an interim injunction in proceedings between the Stuttgart-based company Skinport and Google Ireland and has now confirmed it following an oral hearing. The online marketplace for so-called skins for Counter Strike 2 has thus not only successfully taken action in the first instance against unauthorized phishing advertisements via Google Ads. Rather, the competent civil chamber has also ruled that Google is liable as a disruptive party under the Digital Services Act (DSA) in such cases: The operator of the advertising service must therefore prevent fraudsters from placing "core-like",  i.e. similar ads via it.

The "Störerhaftung" (Breach of Duty of Care) enshrined in German law allows third parties who merely contribute to the infringement of a protected good to be held liable. According to Article 8 DSA, providers of intermediary services – such as Google – in this case are not subject to a general obligation to monitor the information they transmit or store or to actively search for circumstances indicating illegal activity. The EU legislator has thus essentially adopted the exemption from liability from the E-Commerce Directive, which was reflected in the German Telemedia Act (TMG). Whether the "Stoererhaftung" is compatible with the DSA requirements has so far been a headache for lawyers.

Google argued before the regional court: It had no "knowledge giving rise to liability". According to its lawyers, the company first became aware of the controversial text advertisement from June 8, 2023 when the first court order was served on June 20, 2023. The advertisement and the advertiser were then blocked so that they could no longer place comparable phishing advertisements. However, the requirements for liability as the operator of a hosting service under Article 6 DSA were not met. There is also no obligation to take preventive action against relevant future infringements.

Recourse to the "Enforcement Directive"

"The objection is unfounded," explained the civil chamber in its recently published judgment of January 15 (case no.: 2a O 112/23). Google is not liable as a perpetrator or participant, but as a disturber. This is because: "The liability for interference is in line with the provisions" of the now applicable Article 6 DSA for intermediary service providers. This also retains the option "for a judicial or administrative authority under the legal system of a Member State to require the service provider to bring an infringement to an end or to prevent it".

The three judges concede that national law cannot be used directly in the proceedings. However, the content of this autonomous right to injunctive relief is defined in more detail by Article 11 of the Directive "on the enforcement of intellectual property rights" with regard to the liability of "intermediaries". According to this article, rightholders can apply for an injunction against intermediaries whose services are used by a third party for this infringement in the event of an imminent infringement of a relevant intellectual property right.

Court does not consider Google to be overburdened with a review requirement

Whether this is an option must be examined on a case-by-case basis, according to the ruling. In this case, the warning letter from Skinport dated 25.05.2023 and a further email from a lawyer shortly afterward triggered the search engine operator's liability for interference. The latter had been "sufficiently specifically informed of the clear infringements", so that it was liable for "the continuing – core – infringements as a disruptive party". It was possible for Google to "locate the specific advertisement in question". The group, which acts intending to make a profit, could also easily identify the types of advertisements to which the monitoring obligations applied and which infringing acts were to be refrained from. This does not result in a general monitoring obligation.

Skins are virtual items such as different textures for weapons that can be customized in the game. In the controversial ads marked with Skinport, the target URL led to a replica of the marketplace website. As a result, "payment and login data of the Steam accounts held by the plaintiff in the injunction were tapped", writes the court. It saw this as a trademark infringement. Skinport's lawyer David Ziegelmayer emphasized that this was "probably the first decision on the (nuisance) liability of search engines under the DSA". The decision is not yet legally binding: Google can appeal.

(nen)