OLG Naumburg on IP Blocking in Injunction Proceedings

Unlike the Hanseatic Higher Regional Court a few years ago in a case I represented, the Naumburg Higher Regional Court recently ruled that it is sufficient to set up IP-based geoblocking in order to comply with a court-ordered ban.

The defendant, or debtor in the summary proceedings, was originally ordered not to publish certain content. Initially, the defendant ignored the ban, but then set up geo-blocking so that the content in dispute could no longer be accessed from Germany.

Like the plaintiff in the case I represented, the plaintiff here did not think this was sufficient. The block could be circumvented too easily. In addition, Germans abroad could access the content. This led to a 4th injunction proceeding, in which the OLG Naumburg now ruled that there had been a violation of the court’s prohibition.

It should be noted, however, that the court explained that the plaintiff initially did not sufficiently counter the debtor’s representation that geoblocking was the only technical method to achieve country-specific blocking of content. In my proceedings at the Hamburg Higher Regional Court, on the other hand, there was extensive discussion as to whether a so-called VPN block would not also have to be installed. The blanket assertion that the procedure used by the debtor here would be too easy to circumvent was not sufficient for the court. In my case, from 2014, however, the court ruled

Debtor 2) was also at fault for the renewed infringement, since she acted at least negligently.

It failed to comply with its duty of care in that it was obliged to do everything that was necessary and reasonable in the specific case to prevent a future violation of the prohibition. In any case, this includes ensuring that it is so difficult to obtain the “bot software from within the Federal Republic of Germany that it is only possible to obtain it again with a disproportionate amount of effort The second debtor did not succeed in doing this either by means of the IP blocking or by means of the instruction to its payment service providers, as it is not problematic for a large part of the target public to circumvent these security measures. Since, moreover, pages on which the software is advertised – albeit in English – can still be called up from Germany without any precautions, the actual possibility of circumvention also has sufficient practical relevance for the customer, which the debtor should have recognized.

It would at least have been reasonable for the debtor to extend the block by means of a proxy or VPN service identifier, so that such circumvention would have been ruled out. The technical possibility of such proxy detection is not disputed by the debtor. To the extent that the debtor argues that such proxy servers are also used outside of Germany, this does not lead to the conclusion that such an extension of the block would not have been reasonable for the debtor: It is conceivable that this would not have excluded exclusively customers from Germany from the download page in dispute. However, this is reasonable for the debtor to comply with the prohibition order, especially since it is not evident that – other than for the purpose of circumventing the IP block – the debtor’s website is accessed to a relevant extent by means of a proxy server or a VPN service.

In the final analysis, therefore, it is likely to depend on the concrete design, but also on the corresponding presentation to the court.

Relevant in such a case is also always the scope of judgments, which can typically be different, for example, in copyright cases, in statements of opinion cases, or in competition law cases. Careful consultation is necessary here. The handling of one’s own business model, the use of payment service providers and the way in which actions are structured within the company can also be relevant to many cases and lead to different outcomes in German courts. I have had many experiences here over the last 10 years.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.