In a recent decision, the German Federal Court of Justice commented on the infringer’s obligation to comply with an injunction relating to illegal web contents (order of July 12, 2018, ref.: I ZB 86/17).
The court approves the general practice according to which the infringer has to remove the litigious contents not only from its own website, but also to contact the operators of well-known search engines in order to get copies of the contents removed from their caches.
The core of the dispute was, however, that an independent third party had uploaded the infringer’s video (which had been available through the mediathek on the infringer’s website) on YouTube, so that search engines now referred to that YouTube contents. The Federal Court of Justice refused to hold the infringer liable for these hits. However, instead of basing this finding merely and clearly on the independence of the third party, the court exerted some discretion, thereby taking into account that the third party had uploaded the video not only against the infringer’s will but also by infringing its copyrights. On the other hand, the Federal Court of Justice did not consider the potential relevance of the fact that the infringer, once notified of the YouTube video, had immediately and successfully asked YouTube to take down the video.
As a result, it is clear enough that the infringer’s obligations in such online cases reach beyond the own website, but the extent of these further reaching obligations will be subject to the circumstances of the particular case.