The Hamburg Regional Court had to decide on a case in which the defendants had wrongfully issued a warning notice to the plaintiff. Originally, the defendants accused the plaintiff of copyright infringement on the internet (filesharing). The defendants alleged that the plaintiff had committed a copyright infringement under a specific IP address. The IP address in question had been provided to the defendants by the public prosecutor's office at the time. It later turned out that the public prosecutor's office had swapped IP addresses during the investigation proceedings. The investigation against the plaintiff was subsequently dropped.
As it had turned out that the plaintiff had not committed any copyright infringement on the internet, the plaintiff now demanded reimbursement of the legal costs incurred due to the unjustified claim (warning notice) in the proceedings before the Hamburg Local Court.
The Hamburg Local Court, by judgment of 11.12.2007, Ref. No. 316 C 127/07, awarded the plaintiff the requested legal costs (damages). However, the Hamburg Regional Court, in its judgment of 21.11.2008, Ref. No. 310 S 1/08, rejected the plaintiff's claim for reimbursement and overturned the judgment of the Hamburg Local Court.
The Hamburg Regional Court found that a wrongfully warned party could only claim the legal costs incurred thereby if the party issuing the warning notice was at fault regarding the unjustified warning. In the present case, according to the Hamburg Regional Court, no such fault existed, as the defendants relied on the information from the public prosecutor's office and were entitled to do so. The Regional Court explicitly stated that the defendants had no obligation to verify the content of the information provided by the public prosecutor's office. Furthermore, the Regional Court held the view that even a statement by a warned party that they had not committed a copyright infringement does not oblige a warning party to re-examine whether the IP address in question is indeed attributable to the warned party.
The decision of the Hamburg Regional Court has far-reaching consequences. There are often considerable doubts as to whether the individuals actually warned truly participated in P2P file-sharing platforms (filesharing). Moreover, doubts are equally justified as to whether the identified IP addresses were actually accurate and correctly determined. Should it later turn out that a warned party was wrongfully warned, the wrongfully warned party is not even entitled to a claim for reimbursement of the incurred legal fees, according to the Hamburg Regional Court. Given the relatively high legal costs incurred in "filesharing cases," this decision by the Hamburg Regional Court is a very unsatisfactory outcome for those wrongfully warned. It therefore remains to be seen whether other regional courts will follow the legal opinion of the Hamburg Regional Court.
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Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Lawyer for Information Technology Law (IT Law)
Email m.ullrich@goldberg.de
