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According to this article:
http://www.r-archiv.de/article2379.html
Interesting read to everybody who owns a forum!
http://www.r-archiv.de/article2379.html
Interesting read to everybody who owns a forum!
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Going to translate?
My LLC is responsible for my forums and other sites now..Running vB since 4-14-2002 -
This is only for Germany right?Originally posted by FlorisComment
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Wow, such an interesting read!
...psssh. i can't even understand the first word :/Comment
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I think he did it on purpose...
Regional court Hamburg
Judgement
Business No.: 324 O 721/05
Announced to 2.12.2005
.................(Rubrum and tenor)
Facts
The parties argue about the existence of the provisional order of the chamber from 20 September 2005, by which the Antragsgegnerin was forbidden to spread forum contributions in which are requested to disturb by massive Downloads „of the program k.exe "the server enterprise of the applicants.
The Antragstellerin to 1., whose managing director of the applicants is to 2., operates an enterprise, which lnternetdienstleistungen offers. The Antragsgegnerin maintains an InterNet appearance. There it spreads contributions among other things to topics, which concern the InterNet. To some these contributions furnishes it lnternetforen, on which InterNet users can express themselves to contents of these contributions.
In one of its contributions the Antragsgegnerin was concerned with from the applicants over the program "k.exe" lntemet offered for the Download of their server. This contains, although it is offered prospective customers because of other functions, a program, which scans lnternet for free Domainnamen become, by calling and examining assigned Domainnamen whether these are still used or whether they are again available. Users, who refer this program of the applicants, by these it is not pointed out that the program contains this function. The described function implemented under report of the results to the applicants of the data-processing systems of the customers of the program, "k.exen", without these attain from it knowledge. This was criticized in the contribution of the Antragsgegnerin.
In of the Antragsgegnerin forum furnished to their contribution announced themselves several InterNet users, who called to download the program "K.exe" so frequently of the server of the applicants that this server is overloaded and precipitates.
The applicants might not have accepted this. After they had without result warned the Antragsgegnerin, they obtained the provisional order of the chamber from 20 September 2005, against which the contradiction of the Antragsgegnerin is directed.
The Antragsgegnerin considers its behavior legal. The applicant to 2. is affected as bare managing directors of the Antragstellerin to 1. anyway not by calls in lntemet. The business manners of the applicants are extremely dishonest and reproachable, by keeping a function, which would let hidden work other people mechanisms for them in the program offered by them, without its customers the noticed. That justifies it to call to the resistance against these business practices. On contents, which were stopped to their forums, it cannot take influence because of the extremely large number at entries. These contents do not make yourself it also zueigen.
The Antragsgegnerin requests,
to waive the provisional order and to reject the request lying to reason.
The applicants request,
to confirm the provisional order.
The applicants consider their proceeding legitimately, anyhow however the spreading of the attacked calls over of the Antragsgegnerin maintained Intemetforen for illegal.
Because of the details to the writs changed between the parties together with plants is referred.
Grounds
I. The provisional order was to be confirmed, because the validly made requirement for omission proves also with consideration of stating the Antragsgegnerin in the contradiction procedure as justified.
The applicants stands the validly made requirement too out §§ for 823 Abs. 1.1004 Abs. 1 sentence 2 BGB similar, because the spreading of the attacked forum contributions by the Antragsgegnerin hurts with continuing repetition danger the applicants in their right at the furnished and exercised industrial concern.
1. The right at the furnished and exercised industrial concern is an other right in the sense § 823 Abs. 1 BGB, which enjoys deliktischen protection from specifically company related interferences over this standard (BGH, Urt. V. 29. 1. 1985, NJW 1985, S. 1620 f., 1620).
This right stands also for the applicant to 2.) too, since over the forum of the Antragsgegnerin of spread calls also aim at, those of it as a managing director of the Antragstellerin to 1.) to impair exercised activity.
The call to the public to set the server of the applicants out of operation by an exactly designated measure - downloading a certain computer program - forms such an interference into the furnished and exercised industrial concern of the applicants.
This interference, because in the forum of the Antragsgegnerin straight is called in addition, is company related the technical bases, on those the enterprise of the applicants is based, physically to impair.
2. For the omission of such interferences is after § 1004 Abs. 1 BGB (similar) each person obligates, from whom a disturbance of the described kind proceeds.
Disturber is thereafter also the Antragsgegnerin.
Because it spread over blockade call inadmissible of it furnished and maintained lnternetforum.
For the disturber characteristic is enough - as also from the standards §§ of the 186 StGB or 824 BGB results - bare spreading of an inadmissible expression out; the fact that widen even behind illegal contents stands or wrote it, is not necessary thereafter.
The disturber characteristic is void not because it would be impossible the Antragsgegnerin to take on contents their forum furnished of influence.
Technically you are easily possible such an influencing control in the principle, since she can furnish their forum in the way that the entries before their de-energising are examined for the legal validity of their respective contents.
To such an examination of contents, which she spreads over their lntemetauftritt, the Antragsgegnerin is also obligated.
Because that person, who maintains mechanisms, over whom contents it are spread in press-moderate way, must precautions going by take that over these mechanisms no illegal contents are spread (s. e.g. BGH, Urt. V. 8. 7,1980. GRUR 1980, S. 1099 FF, 1104).
That applies also to those enterprises, which spread contents over lnternet.
In particular in the medium service convention or in the Teledienstegesetz planned adhesion privileges do not apply to lntemetauftritte to the responsibility of the disturber obligated to the omission after § 1004 BGB similar (BGH, Urt. V. 11. 3. 2004, GRUR 2004, S. 860 FF, 863 f.).
A border of the responsibility may result in special drop constellations from the fact that control of common contents do not widen is reasonable.
So the publisher of a publication organ is not to be responsible in every case for illegal contents of in its publication organ published reader letters or adverts, in particular if he can recognize the illegality of contents of the reader letter or the advert only with difficulty also with knowledge of this contents, because it requires in addition the knowledge of further procedures (BGH, Urt. V. 27. 5. 1986, NJW 1986, S. 2503 FF, 2503, 2505; BGH, Urt. V. 7. 5. 1992, GRUR 1992, S. 618 f., 619).
A comparable state of affairs is already therefore not given these drop constellations here meanwhile, because the Antragsgegnerin would have already had itself to force the illegality upon of a blockade call with information of its contents alone almost, as a pure boycott appeal is already in principle illegal (BGH, Urt. V. 29. 1. 1985, NJW 1985, S. 1620 f., 1620) and the call to disturb operational funds of an enterprise by active doing over it go out still clearly.
A restriction of the responsibility of the Antragsgegnerin for contents, which are spread over maintained by it the furnished and lnternetforum, does not result also from it that it would be impossible the Antragsgegnerin due to - to their favour subordinated - the multiplicity of the entries in their maintained forums, all entries before a de-energising - as this is before press-moderate spreading of expressions in principle necessary (s. for instance BGH, Urt. V. 18. 12. 1962, NJW 1963, S. 484 f., 485) - to let examine by one in the sense of 531 BGB responsible person coworker.
The chamber has already substantial doubts to the fact that the multiplicity of the common entries can deliver alone at all a reason for it to release widens from its responsibility to.
Because who operational funds ready keeps, which permit it to it to spread over an editorialally arranged offer in giantful number of expressions maintains with a source of danger by opening the possibility to an indefinite multiplicity of users straight of spreading in large number of expressions which are suitable, rights third to hurt.
General principle that that, which maintains a particularly dangerous mechanism, because of whose danger by possible liability risks would have to be kept free existed not; tendency goes by in opposite rather that that, which maintains a mechanism, from which because of their heavy controllableness special dangers proceed to an intensified adhesion is subjected (s. e.g. for the range of the right to recovery of damages the cases of the absolute liability like 5 7 StVG, 5833 sentence 1 BGB, § 84 Ameimittelgesetz).
If the Antragsgegnerin operates an enterprise - and holding ready lntemetforen places such a form of untemehmerischen enterprise -, which spreads entries in large number over such forums, she must therefore furnish their enterprise in such a way that she is with her material and personnel resources also able to control this business concern.
If the number of the forums and the number of the entries are so large that the Antragsgegnerin does not have sufficient personnel or sufficient technical means, in order to submit these entries before their de-energising an examination on their legal standard, then it must increase either their means or limit the range of their enterprise - approximately by reduction of the number of the forums or limitation of the number of the entries -.
To that extent can for an enterprise, whose business concern lies in the maintenance one lntemetauftritts, nothing different one are considered than for all other enterprises also.
Everything this requires meanwhile no locking discussion.
Because a restriction of the responsibility for that, which spreads expressions or offers over lnternet, is not possible anyhow if widen due to the kind of its offer cause for the acceptance have must that this from users to purposes of the injury of rights third is used (BGH, Urt. V. 11.3.2004, GRUR 2004, S. 860 FF, 864; s. also recently Hans. OLG, 5. ZS., Urt. V. 8. 2. 2006, 5 U 78105, under II1. C of the reasons).
Anyhow that was here the case.
Because Antragsgegnerin had opened to their contribution, in which it had complained of the behavior of the applicants, forum, and due to which in their own contribution practiced hard criticism to behavior applicants had it anyhow on it to count that users, who would stop contributions into this forum, over whom strands strike "and would use the opportunity straight here, which enjoyed a high attention value by the publication of the Antragsgegnerin calling to illegal actions against the applicants.
_ anyhow then, if, like with a such a state of affairs, which widen with it count must, that the of him the user zur verfuegung provide offer abuse will, must he effective precaution take, in order a such abuse avoid, and such precaution can here only of consist, that the enter contribution before their de-energise examine.
3. The spreading of the forum contributions was also illegal. Injuries of the right at the furnished and exercised industrial concern by spreading of expressions can be justified, if widen yourself to that extent on the perception of justified interests or other predominant interests, itself from over kind. 5 exp. 1GG basiclegally protected liberty of opinion result in can (BGH, Urt. V. 29.1.1985, NJW 1985, S. 1620 f., 1620), destined can.
That was here meanwhile not the case.
The Antragsgegnerin is to be however admitted the fact that the business model of the applicants, which had criticized her in her contribution, when appears to a considerable degree doubtful.
Anyhow it is out of question that it in the light of the fundamental right from kind. 5 exp. 1Satz 1 GG in sharp form to be criticized may do.
To this fundamental right the Antragsgegnerin may appoint itself also regarding the contributions spread over their forum, because kind. also the bare spreading protects 5 exp. 1GG of mental contents.
Also the fundamental rights from kind. 5 Abs. 1 GG ensure however, like kind. 5 Abs. expressly, no barrierless right says 2 GG to the spreading of expressions of all kinds.
The right for free expression of opinion finds its borders anyhow, where rights of others are concerned in an extent, that to the penetration of the own point of view -oder the point of view of that, whose opinions are spread - is no longer adequate.
That is then the case, if the expression goes to criticize the complained of behavior publicly but large calls to disturb the business concern of the criticized one physically like typically with a boycott appeal the case is (BGH, Urt. V. 29. 1. 1985, NJW 1985, S. 1620 f., 1620).
In the available case the expressions attacked by the applicants even still went beyond such a boycott appeal, as in the forum contributions was called to set the operational funds of the applicants by active doing out of operation.
With such a behavior demanded by individual forum users deeply into basiclegally protected ranges of the applicants one penetrates, by it the applicants in the practice of their fundamental rights from kind. 14 Abs. 1 and kind. 12 Abs. 1 GG impairs.
To provide practice such aimed operatingdisturbing behavior is however already therefore no adequate means more, in order point of view forum participant validity, because with the measure, to which one calls, not only the complained of behavior of the applicants, but be put its entire industrial concern is to be prevented lamely.
Anyhow the spreading of calls to such disturbances of their enterprise does not need to bear the applicants.
4. The repetition danger is after the general principles (BGH, Urt. v. 8.2.1994 NJW 1994, S. 1281 FF, 1283) due to the law breaking taken place with the spreading of the attacked forum entries via the Antragsgegnerin indicate.
II. The cost decision follows out § 91 ZPO.
Reader reference:
Despite the Osterfeiertage the Internetrechtler Dr. Martin Bahr – made a first estimate – of the judgement. Dr. Bahr misses in the judgement, like many the reader probably:
1) a reason of the subordinated – increased duties to exercise diligence – of HEISE.
It does not become clear whether these increased duties to exercise diligence – are to result from preceding doing ( – *) or from the enterprise of a forum.
(*) Actions, which increased duties to exercise diligence justify, could be already after – the BGH- iurisdiction in earlier times taken place illegal attacks on the applicants – and (possibly) the kind of the reporting in the concrete case.
2) obligation for the previous examination of over 6.000 Postings daily – before de-energising.
Dr. Bahr implements that this request of the court would contradict clear the BGH- iurisdiction.
Also over the kind of such an examination the court would state nothing.
3) validity for all forums or only for press-similar (commercial) enterprises?
Be silent yourself also here the judgement out.
(managing remarks are only a Abstract of the estimates of attorney Dr. Martin Bahr.)
It is worthwhile itself to read the full contribution of Dr. Martin Bahr.
Independently of it the reference to the comprehensive "judgement note" of attorney Ralf Hansen - on R archives.Running vB since 4-14-2002Comment
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Most likely it's for Germany. I don't see it happening in the US.Comment
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Well i understand the word September
MCSE, MVP, CCIE
Microsoft Beta Team
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Even if it doesn't apply to other countries it can be used as example.Comment
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Can't use it as an example if we can't read it.Originally posted by Floris
Running vB since 4-14-2002Comment
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I believe it has been ruled by a lower court in US regarding this issue, I posted the link a while back but can't seem to find it again. LOL I seriously don't think it will pass in the US, based on numerous prior rulings.Comment
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But yeah, thanks for sharing Floris.Comment
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Here's an English version:http://www.theregister.co.uk/2006/04..._for_comments/
I highly doubt this will be mandated in the US. I don't feel that we should be held responsible for any issues, but a moderator or admin should feel morally responsible to take care of their members.Comment
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Lets see - someone posted something, that I am going to gather protects a user against internet dialers - and the maker of the internet dialer company sues? ... and wins?
Damn. I should have been a sleazeball.Comment
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