Illegal videos on Youtube - no disclosure of the e-mail

If videos and film sequences are illegally uploaded to YouTube, this is a violation of the rights of the film owners. Legally, they can hardly take legal action against it, if the Youtube users act under aliases. The BGH now judges: no disclosure of the e-mail address can be demanded.

The BGH has now made its final ruling in the long-running Constantin Film Verleih vs. The core of the dispute is the illegal uploading of protected films and videos to the video platform YouTube.

Aliases are allowed according to the German Telemedia Act

Since the German Telemedia Act (§ 13 Abs. 6 TMG) allows users of internet platforms to register there under an alias, it is difficult or impossible for the rights holders of videos and films to punish an infringement by illegal uploading to YouTube. Although Constantin Film Verleih has a justified claim for injunction as well as a claim for damages against the infringers, the corresponding lawsuit cannot be addressed, since Constantin Film only knows the aliases.

The Constantin Film Distribution therefore demanded that Youtube – which as an Internet platform cannot be proactively prosecuted for rights violations on its platform – provide information about the infringers beyond the aliases, in particular the e-mail addresses stored on Youtube and the IP addresses used when uploading the illegal videos. But Youtube refused to do so.

BGH submitted interpretation of the term “address” to the ECJ

For the Federal Court of Justice, until this dispute was brought before it, the decisive question was what is meant by the term “addresses” according to EU Directive 2004/48 (Art. 8 para. 3). The BGH submitted this to the ECJ as a preliminary ruling.

The ECJ ruled on it in July 2020 – we reported. In its ruling, the ECJ determined that neither e-mail addresses nor telephone numbers fall within the term “address” and that there is therefore no obligation to provide information about this information for Internet platforms.

BGH: Duty of disclosure does not include e-mail

Accordingly yesterday then also the BGH judged: Youtube does not have to give the e-mail addresses of users with aliases, even in the case of obvious violations of the law by illegal uploading of videos.

This ruling thus confirms that YouTube – and other major online platforms – are not required to disclose the IP addresses, e-mail addresses or telephone numbers of their users, even if they have illegally downloaded or uploaded videos.

Youtube itself, incidentally, refers to the new “Content ID” system that the video platform has introduced. Behind this system is software that is claimed to be able to check whether a video to be uploaded matches a protected film sequence and then exclude it from uploading. This may have an effect on the video platform YouTube, but the fundamental discussion remains: Freedom of expression or piracy and hate speech?

Aliases: Freedom of speech or Piracy and Hate Speech?

The fundamental social discussion in the area of freedom of opinion – especially on the Internet – and the abuse of code names for product piracy, illegal uploading and file sharing as well as for hate speech and fake news has been going on for years and has reached the political level. According to the decision of the German Federal Constitutional Court (BVerfG) of May 27, 2020, the Federal Government must draft a law to newly regulate the so-called inventory data information (1 BvR 1873/13, 1 BvR 2618/13).

The so-called “Hatespeech Act” is already available, but has not yet been drafted, i.e. de facto not yet in force. However, it is to be expected that this will happen next year 2021. In particular, the Network Enforcement Act (NetzDG) provides for an obligation to report. This is primarily intended to improve the prosecution of hate crime on the net, and also aims to achieve close cooperation between law enforcement authorities and Internet platform operators such as Facebook, YouTube and TikTok.