The Federal Court of Justice (BGH) has issued an interesting decision on the right of expression and Youtubers. Under the file number Az. I ZB 86/17, the Federal Court of Justice ruled on July 12, 2018, that someone who is obligated to cease and desist from making a statement on the Internet (in this case, NDR) does not have to take proactive action against illegal uploads of the statement to YouTube. After NDR removed the passages to be omitted from the media library, they could no longer be found on Google. However, copies of the unedited broadcast had been illegally uploaded to YouTube by third parties and were still available there. However, the BGH ruled that this was not attributable to NDR, as the dissemination by third parties was unlawful and without knowledge or economic benefit for NDR.
This decision is essentially consistent with previous decisions of various higher regional courts, which often focus primarily on the economic benefit when it comes to the question of when duties to cease and desist become duties to act actively to prevent further infringements.
