Liability for interference remains permissible: Google to stop phishing adverts

The "Störerhaftung" (Breach of Duty of Care) enshrined in German law is compatible with the EU's Digital Services Act (DSA). This was decided by the Düsseldorf Higher Regional Court (OLG) at a hearing on 2 September in summary proceedings between the Stuttgart-based company Skinport and Google Ireland (case reference: I-20 U 16/25). In the minutes of the public hearing available to heise online, the competent 20th Civil Senate points out that, in its opinion, Article 6 DSA "continues to allow the previous liability for interference practised based on the previous provisions in the E-Commerce Directive".

The OLG thus confirms the interim injunction against Google issued by the regional court at first instance in January. As the operator of Google Ads, the internet giant must therefore check adverts placed by third parties to prevent unauthorised, reported phishing attempts in the future. At the same time, the operator of the advertising service must prevent fraudsters from placing "core-like" – i.e. similarly knitted – adverts through it. In such cases, Google is liable as a disturber under the DSA.

Main proceedings on the horizon

The online marketplace for so-called skins such as weapons with different textures for Counter Strike 2 has thus also successfully taken action in the second instance against unauthorised phishing advertisements via Google Ads. In the controversial advertisement labelled Skinport, the target URL led to a replica of the store operator's website. As a result, payment and login data from Steam accounts were allegedly tapped.

The OLG chamber also clarified that it was not possible to involve the European Court of Justice (ECJ) in the dispute over the preliminary injunction and request a clarification of principle on the interpretation of Article 6 DSA. If necessary, this would have to be done in any proceedings on the merits. At present, however, the legal question "can be answered with sufficient certainty in favour of the regional court". Google subsequently withdrew its appeal against the lower court's decision. However, the main proceedings and the resulting ECJ referral are likely to take place.

(vbr)