Draft second act amending the Telemedia Act: material content of the draft – conditions of liability
Service providers are in principle not responsible for external information saved for a user as long as they are not aware of the unlawful action or information. In the case of claims for damages this only applies if they do not know of any facts or circumstances from which the unlawful action or information becomes apparent. In the case of certain services whose business model is based on the infringement of intellectual property rights, it may be assumed, based on general experience of life, that the service provider will be sufficiently aware of many facts and items of information from which the unlawful action or information becomes apparent. Case-law now refers to these services as “services involving particular risk” [“gefahrgeneigte Dienste”]. In order to obtain more legal certainty and clarity, the law (de), following this, enumerates case situations in which the assumption can be made of a service involving particular risk. By this means the Federal Government takes account (de) of the fact that in the case of copyright infringements on the internet for the copyright holder concerned to take action against service providers whose business models are largely based on rights violations, is in many cases difficult, if not impossible. Specifically the following situations may be assumed to comprise a service involving particular risk:
1. If the storage or use of a very large proportion of the stored information is done unlawfully.
If predominantly information with unlawful content is stored or the major proportion of the stored information is used in an unlawful manner, general experience argues that the service provider will also know about this. Not the absolute amount of unlawful content but the relative proportion of unlawful content is crucial in this case. If it comprises well over 50 % of the stored information, it may be assumed that this has not remained hidden from the service provider.
2. If the service provider intentionally encourages the risk of unlawful use by its own actions.
If the service provider specifically encourages the risk of unlawful use, awareness can also be assumed. Within the meaning of the rulings of the Federal Court of Justice, this may be assumed for instance if the service provider, other than in the field of “cloud computing,” does not charge a fee for providing storage space, but his income is dependent on the frequency of downloads of the uploaded (unlawful) files (judgement of 15.8.2013, ref. I ZR 80/12, “File-Hosting-Dienst” and/or “Rapidshare”). It is not sufficient if measures only also encourage the risk of an infringing action. A business model which exists simply in the offering of a cloud also does not encourage the risk of a use which infringes rights.
3. In advertising spots instigated by the service provider the non-traceability in the case of rights violations is advertised.
If advertising by the service provider specifically points out that the offering is designed so that no prosecution is threatened even in the case of rights violations, it can also be assumed that the service provider is aware that his service is being used to a considerable extent for unlawful activities.
4. If there is no possibility of having unlawful content removed by the authorised party.
Service providers are obliged to remove unlawful content as soon as they gain knowledge of it. The authorised person, e.g. a holder of rights, must therefore have the possibility of notifying the service provider of this and the service provider must then have the possibility of removing the content. If these possibilities are not provided, it can therefore be assumed that the service provider intends to avoid these obligations. This also leads to the conclusion that he is aware of the unlawfulness of the information.