Germany: Will YouTube be held liable for its users in the future?

Jul 15, 2022 Benn-Ibler Rechtsanwälte

The German Federal Supreme Court (BGH) has recently had to decide, among other things, on the liability of the operators of YouTube, an internet platform, for copyright infringements committed by third parties using this service. In the future and under certain conditions, it will be possible to sue such platforms for damages related to copyright infringements.

A music producer filed a lawsuit against YouTube, an internet platform. In November 2008, videos with musical works by artist Sarah Brightman appeared on the platform. Sarah Brightman's music producer first approached the internet platform with a letter from his lawyer after which YouTube blocked some of the videos. A short time later, recordings of the artist were again found available for download. The music producer then filed a claim against YouTube for the provision of information, a declaration of liability for damages, and injunctive relief. After referring certain questions of EU law to the Court of Justice of the European Union (CJEU), the German Federal Supreme Court allowed the plaintiff's appeal.

According to the German Federal Supreme Court, the asserted claims for injunctive relief were only justified if the provision of infringing content uploaded by users on the platform constituted an act of communication to the public, infringing the plaintiff's rights both at the time of the action and according to the legal situation existing at the time of the decision.

On submission, the ECJ ruled in this regard that an operator of a video-sharing platform engages in acts of communication to the public of sharing infringing content uploaded by users even if the provider ought to know or knows that users generally make protected content available to the public via this platform in an unlawful manner and yet the platform does not take appropriate technical measures to effectively counteract any copyright infringements.

The German Federal Supreme Court went on to state that general awareness of the infringing availability of protected content was not sufficient for a presumption of communication to the public. However, the situation is not the same if the operator has been informed by the copyright holder of the unlawfully publicly accessible content and then does not immediately take some action.

The BGH thus changed its ruling. In this constellation, one can be liable as the perpetrator of an unlawful act of communication to the public, not only as an interferer.

Press Release Nr. 080/2022 zu BGH, I ZR 135/18