The German Federal Court (BGH) on balancing of IP and copyright against the freedom of the press and freedom of expression

BGH, Urteil vom 14.10.2010, I ZR 191/08

The present case concerns the balancing of IP and Copyright against the freedom of the press and freedom of expression. The German Federal Court (Bundesgerichtshof) reversed the contested decision of the appeal court, because the latter decided that the acts of the respondent (namely the setting of a link which led to the access of an internetsite which was illegal) are not justified on the basis of freedom of expression and freedom of press reporting. According to the German Federal Court (Bundesgerichtshof) the abovementioned acts are covered by the freedom of expression, freedom of opinion and freedom of press reporting on the basis of Article 6 of the Treaty on the European Union (TEU) and Article 11 para. 1 and 2 of the Charter of Fundamental Rights of the European Union (EU Charter).

In addition, the German Federal Court (Bundesgerichtshof) stressed that in the interpretation of Directive 2001/29/EC which is implemented through Article 95 (a) of the German national Copyright Law the fundamental rights as provided in and pursuant to Article 51 para 1 (1) of the EU Charter are to be taken into consideration. By the balancing of interests here it is relevant that the respondent had knowledge of the illegality of the offer in the website and under consideration of this knowledge the German Federal Court (Bundesgerichtshof) decided that the protection and safeguarding of the freedom of expression as well as press – freedom of the respondent outweighed the copyright interests of the claimant. It is noteworthy that in its observations the German Federal Court (Bundesgerichtshof) concluded that the protection of the freedom of expression and freedom of the press encompasses also situations in which there is information which could insult, shock, trouble or disturb another person (ECJ Case Connolly/Commission – C – 274/99). The German Federal Court (Bundesgerichtshof) did not deem it necessary to refer the case to the ECJ for a preliminary ruling.

The full text is available on EuroCases

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