Federal Administrative Court: Internet brokers aren't required to block gambling
According to the Supreme Administrative Court, providers without their own network infrastructure cannot be obliged to block access to gambling sites.
Symbolic image of online gambling
(Image: Marko Aliaksandr/Shutterstock)
A legal setback for the Joint Gambling Authority of the federal states (GLG) in the fight against lotteries and other competitions on the internet that are not permitted in Germany. The Federal Administrative Court ruled on Wednesday that at least internet access providers without their own network infrastructure do not have to block access to such sites. The appeal by the gambling authority based in Halle against a corresponding ruling by the Rhineland-Palatinate Higher Administrative Court (OVG) in April 2024 was therefore unsuccessful.
In October 2022, the GLG ordered an internet provider to block the websites of certain companies from Malta. The provider, which does not have its own network infrastructure, took legal action against this. In its previous ruling, the OVG in Koblenz explained that it resells the wholesale services provided by telecommunications network operators to its end customers.
The plaintiff is said to be the Rhineland-Palatinate company 1&1. It has been operating as a full-service provider of telephone and Internet connections since 2007. It relies on the networks of Deutsche Telekom as well as infrastructure from TelefĂłnica, QSC and Vodafone.
The Maltese companies involved in the dispute offer "slot games" and lottery bets on the Internet, which are illegal in Germany. German authorities have already issued several prohibition orders against their legal predecessors since 2014 due to these gambling offers. These were also issued to the new operators. The gambling offers can still be accessed from Germany in a comparable form. The gambling authority therefore ordered the claimant to block these websites within the scope of its technical possibilities as an access provider.
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Going through the courts
The provider concerned successfully defended itself against this both in interim legal protection proceedings and later in the main proceedings before the lower courts. The gambling authority had threatened access providers with massive fines.
The crux of the authority's order is paragraph [9] of the State Treaty on Gambling (GlüStV) from 2021, as confirmed by the highest German administrative court (case reference: BVerwG 8 C 3.24). This is because it refers solely to the responsibility of providers under Section 8 of the German Telemedia Act (TMG) in the case of web blocks.
According to the liability privileges stipulated therein, service providers are not responsible for third-party information that they transmit in a communication network or to which they provide access for use, provided that they have not initiated the transmission or selected the addressee of the transferred information. The exemption also applies if the providers have not selected or changed the transmitted data.
TMG no longer in force – but still applicable
The TMG has no longer been in force since May 14, 2024. The legislator has partially transferred it to the Digital Services Act (DDG) as part of the implementation of the EU's Digital Services Act (DSA). However, the interim repeal of the Telemedia Act does not change the applicability of the previous liability regime, emphasizes the Federal Administrative Court. This is because the reference refers to the version of Section 8 TMG in force when the State Treaty on Gambling came into force.
According to Paragraph 9 GlüStV, blocking orders may only be expressly directed against service providers who are responsible within the meaning of the liability paragraphs of the Telemedia Act, explain the Leipzig judges. For access brokers – unlike for network operators, for example – Paragraph 8 TMG is relevant. The drafting history of the Interstate Gambling Treaty shows that the federal states wanted to fall back on the system of graduated liability of different types of service providers standardized in the TMG. The purpose of the provision does not justify an interpretation contrary to the wording.
The Federal Administrative Court also found that EU law does not preclude the application of the reference to Section [8 TMG]. According to this provision, the plaintiff is not responsible. It did not initiate the transmission of the gambling content, nor did it select it or its addressees. There was also no collusion between it and the operators of the gambling sites. Other bases for authorization to issue a blocking order are not available due to the special, conclusive nature of Section 9 GlüStV.
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