BGH; 2022-10-13; I ZR 111/21
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2022:131022UIZR111.21.0
Date: 2022-10-13
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE1013(51)_ENG_SUMJURE
JURE summary
JURE summary
Several publishing houses of scientific literature from the USA, Great Britain and Germany (hereinafter ‘the plaintiffs’) filed an action against a telecommunications company domiciled in Germany (hereinafter ‘the defendant’) requesting the defendant to create DNL blocklists for domains used by certain internet services.
According to the plaintiffs, the internet services that used the domains of the defendant allowed for unauthorised access to articles and books, as specified by the plaintiffs, to which the plaintiffs held exclusive usage rights.
The Landgericht München (hereinafter ‘the Court of First Instance’) as the court seised under Article 7(2) of the Brussels I Regulation (recast) (1) upheld the action.
Based on the appeal of the defendant, the Oberlandesgericht München (hereinafter ‘the Court of Appeal’) annulled the decision of the Court of First Instance. According to the Court of Appeal, the action was admissible, but not substantiated. The plaintiffs had no right to the creation of DNS blocklists under Article 7(4) of the TMG (2). It was true that the provisions of the Act also applied to the defendant as a wired access provider but the plaintiffs, however, had not used all reasonable opportunities to find out the identity of the operators of the internet services and take legal steps directly against them.
The plaintiffs pursued their claim further by filing a revision with the Bundesgerichtshof (hereinafter ‘the Supreme Court’). The revision was unsuccessful.
The scope of applicability of Article 7(4)(1) of the TMG was given due to the fact that works of scientific literature belonging to the plaintiffs were made accessible to the public on the websites without the authorisation of the plaintiffs; however, the precondition that the legal owner has no other opportunity to deal with the infringement of their rights other than with a blockage was not met in this case. If this precondition is not met, the seised court cannot order the creation of a DNS blacklist. The plaintiffs had the possibility, amongst other things, to apply for the issuance of a preliminary judgment with the German courts which could be achieved in the shortest time.
The defendant who as an access provider solely enables general access to the internet has only a subsidiary liability with respect to those participants who (such as the operator of the website) directly infringed the rights or (such as the host provider) contributed to the infringement by the provision of their services.
The Supreme Court dismissed the revision of the plaintiffs against the decision of the Court of Appeal.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Telemediengesetz  vom 26. Februar 2007 (German Telemedia Act).