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German Court Rules Online Publisher Must Monitor Reader Comments
A German district court in Hamburg has issued an order preventing online publisher, Heise, from publishing reader comments that encourage others to overload a third party company’s server. In the view of the publisher, the effect of this order is to require it to proactively review all comments and discussion forums, without advance notice that a particular post or comment offends the order.
When notified by the third party company, the publisher had immediately deleted forum comments that the company had alleged incited other readers to frequently download files from its servers, some of which directed readers to a script designed to download large volumes of files, allegedly with the intent of bringing down the server. However, the publisher did not begin reviewing all forum comments, believing it only needed to act when notified of offending material. The company proceeded to seek a temporary restraining order, granted by the court, preventing publishing of the offending reader comments. The court held that the publisher must be held liable for spreading the offending material, regardless of whether it was aware of the content, reasoning that the publisher could check the material automatically or manually. The publisher had argued that automatic filters have not been proven successful, and manual checks of the more than 200,000 comments per month are not feasible.
Heise Online has observed that this decision contradicts the “expressed will” of the German Parliament and of an EU Directive stating that service providers are not obligated to monitor the information that they only transmit or store, and that the German Supreme Court had ruled that providers are only liable if there are reasonable ways of reviewing the content. The publisher has indicated its intention to appeal.
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