Injunctive relief includes infringements by third parties

If a manufacturer is prohibited from distributing its products after an anticompetitive violation, it must also recall them in accordance with the case law. Current German judgements on injunctive relief for false statements on the Internet strictly interpret this: an injunctive debtor must also check possible infringements by third parties.

Claims for injunctive relief includes recall of goods

The BGH has already repeatedly confirmed its line according to which injunction debtors must request the recall of their goods. In addition, a third party is generally obliged to recall products already delivered to ensure that the intermediaries do not sell the product further (see BGH RESCUE TROPFEN). This interpretation also applies if the action for injunction is directed against false allegations and not against specific products. In the event of demonstrably false allegations, the illegal content must be deleted.

Such a situation existed in several German judgements on the subject of the obligation to recall an injunction. The courts ruled that an injunctive debtor must also investigate third-party violations in order to avoid punishment. And this even applies to “Google My Business ads” not commissioned by the injunction debtor.

LG Dresden-Dessau: Unauthorized certification as a four-star hotel

Such a case was heard at the Dessau-Roßlaus Regional Court in November 2017. A hotelier had advertised four sun symbols on his website. These symbols were easily confused with the usual quality system of the star rating and were also placed on the website of the hotel, where according to common opinion the star rating of a hotel is localized.

An authorization and official certification as a four-star hotel by the German Hotel and Restaurant Association (DEHOGA) was not available for this hotel. The trade association therefore criticized the use of the star-like sun symbols and demanded a cease-and-desist declaration of the innkeeper with punishment. Because the operator of the hotel did not want to hand this over, the case was tried before the regional court Dessau-Roßlau (LG Dessau-Roßlau, judgement of 24.11.2017, Az.: 3 O 32/17).

At its core was the question of whether the symbol of the sun could be confused with the recognized star system as a quality certification. This was affirmed. In addition, however, it was also a question of whether an injunction debtor must also contact third parties who disseminate the anti-competitive content without his order or his assistance in order to comply with his obligation to cease and desist.

Third-party violations on the Internet must be emphatically prevented

The court affirmed this and thus interpreted the due diligence requirements very strictly. In principle, an injunctive debtor is not responsible for the independent actions of third parties. However, he is required to exert influence on third parties whose actions benefit him economically (see BGH RESCUE TROPFEN). In the present case, the defendant should therefore have ensured that the reference to the unauthorised 4-star classification could no longer be accessed on the Internet – not even via the hit list of the most successful search engine Google, in the cache or in Google’s advertising format. The defendant would have had to carry out his own searches in the usual search engines in order to identify possible infringements by third parties.

In the case of such a third party infringement, it is also not sufficient to call the third party or write an e-mail. Rather, it must be pursued emphatically and legal action must be threatened. Because if an injunction debtor finds a violation of third parties, he must rather exert lasting influence on third parties to comply with his duty to cease and desist – this even applies to “Google My Business” ads that were not commissioned by him. For an injunction debtor cannot successfully invoke the fact that entries in classified directories are not written by himself. Because only his false testimony could make it possible for third parties to reproduce these false testimonies, the Regional Court of Karlsruhe already ruled in 2014 in its justification for “Limits of the debtor’s obligation to conduct an Internet search to avoid further violations of competition law” (LG Karlsruhe 08.07.2014 – Az.: HK O 33/13).

OLG Stuttgart: Injunction debtors and the removal of publications on the Internet

As early as 2015, the Stuttgart Higher Regional Court had ruled in a similar manner (OLG Stuttgart 2 W 40/15). In principle, an injunction debtor could not rely on the fact that this would involve a disproportionate effort. It only fulfils its duty if, from the point of view of an objective third party in the place of the enforcement debtor, it can be expected that the measures taken will certainly lead to the risk of a renewed dissemination of the unfair statement on the Internet set in the past not being realised. This applies not only to future publications, but also to the maintenance of a previous publication. Because every retrieval on the Internet entails a new data transmission and is therefore also a normative violation of the restraining order.

Conclusion

These judgements make it clear that false information on one’s own websites can become very time-consuming and costly due to its rapid distribution on the Internet if a right to cease and desist is punishable by law.

An injunction debtor does not have to clean up the entire Internet indefinitely, but nevertheless essential areas of it. In any case, he must check the best-known search engines and online portals and also monitor promptly that the omission actually took place there. This should be documented very carefully, as in the case of claims for injunctive relief with punishment. Not only the individual measures, but also the reactions of the addressees of the withdrawal request should be part of this documentation.