Ruling: Even small platforms are liable for copyright infringements by users

Beyond YouTube, Facebook & Co., small and medium-sized online platforms can also be held responsible for copyright infringements committed by their users. This is shown by a judgment recently published by the Cologne Regional Court on July 24 (Ref.: 14 O 343/23). The decision tightens the liability rules for host providers and is an important pointer for the entire industry.

The case: A photo, a pilot, an intermediary portal. A professional photographer discovered that one of his aerial photos had been uploaded to a platform for private flight offers without his permission. A pilot used the photo to advertise his flight.

Although the platform operator removed the photo after receiving a warning, he refused to issue a legally binding cease-and-desist declaration. Reasoning: As a mere intermediary of content, it was not liable for copyright infringements by users. Proactive monitoring of all uploaded images would not be technically or economically feasible.

The regional court saw the matter differently. It ordered the defendant to cease and desist, to pay damages in the amount of 200 euros and to pay the legal fees. The 14th Civil Chamber found that the platform had not taken all reasonable technical and organizational measures to prevent copyright infringements. In the opinion of the court, it was therefore acting as a "perpetrator" of the infringement.

Liability privilege does not apply

The ruling is based on the case law of the European Court of Justice and the Federal Court of Justice. Both instances have significantly tightened the liability of platform operators in recent years. The main issue here is the distinction between whether a portal plays a neutral, passive role or actively participates in infringements.

The Cologne judges ruled that the platform cannot invoke the host provider privilege. Deleting the controversial photo was not enough. A platform must take credible and effective precautions against copyright infringements.

Proactively take action against platforms

The court also emphasized that the operator had known that copyright infringements could occur on its site. He had even displayed a corresponding warning when uploading images. Nevertheless, he had not taken any preventative steps. The chamber did not accept the argument of unreasonableness because the platform was small. It referred to technically feasible alternatives such as image search functions that compare uploaded photos with works already published on the internet. Such solutions could also be implemented by smaller operators.

The decision also shows that the Copyright Service Provider Act does not conclusively regulate liability. General principles of liability continue to apply if a platform actively contributes to the distribution of copyright-protected content through its business model.

IT lawyer Jens Ferner believes that the ruling strengthens the legal protection options of photographers, artists and other authors. They no longer have to wait until their works are used illegally. Instead, they can already take action against platforms if they have not introduced sufficient protection mechanisms.

(vbr)