The First Civil Senate of the Federal Court of Justice (BGH), responsible, among other things, for copyright law, has ruled that the operator of an online recipe collection can be held liable if internet users unlawfully upload photos of cooking recipes to their website.
The defendant offers a freely accessible recipe collection at the internet address www.chefkoch.de. Recipes are independently uploaded by private individuals with corresponding images. In this process, photos created by the plaintiff were repeatedly used without obtaining his consent. These photos, along with corresponding recipes, could be accessed free of charge at www.marions-kochbuch.de, which the plaintiff operates together with his wife.
The plaintiff primarily seeks to prohibit the defendant from making certain photographs, created by him and accessible at www.marions-kochbuch.de, publicly available on the website www.chefkoch.de without his permission. Furthermore, he seeks damages. The lawsuit was successful before the Regional Court and the Higher Regional Court.
The Federal Court of Justice rejected the defendant's appeal. The provision of the plaintiff's copyrighted photos for access at www.chefkoch.de infringes his exclusive right to make them publicly available (§ 15 para. 2 no. 2, § 19a Copyright Act). The infringement is not precluded by the fact that the photos were already generally accessible on the plaintiff's website. The defendant's liability is also not limited by the fact that service providers are only liable to a limited extent for infringements in the case of transmitting and storing third-party information (cf. §§ 8 to 10 TMG). This is because the defendant adopted the content uploaded by its users as its own. Therefore, it must be held responsible for this content as if it were its own.
According to the Federal Court of Justice (BGH), the defendant does not merely operate an auction platform or an electronic marketplace for third-party offers. Instead, it has visibly assumed content responsibility for the recipes and illustrations published on its website. The defendant substantively controls the recipes appearing on its platform and informs its users of this control. Furthermore, the defendant marks the recipes with its emblem, a chef's hat. The author of the recipe appears only as an alias, without any highlighting, below the ingredient list. Additionally, the defendant requires its users' consent to freely reproduce and distribute all provided recipes and images to third parties.
The Federal Court of Justice also awarded damages to the plaintiff. The defendant had not sufficiently verified who held the rights to the photos published on its platform. The disclaimer in its General Terms and Conditions, stating that no copyright-infringing content should be uploaded to its platform, was deemed insufficient in this regard.
Judgment of the BGH of november 12, 2009 – I ZR 166/07 – marions.kochbuch.de
Lower Courts:
Higher Regional Court of Hamburg – Judgment of September 26, 2007 – 5 U 165/06
Regional Court of Hamburg – Judgment of august 4, 2006 – 308 O 814/05
Source: Press release of the Federal Court of Justice
Goldberg Rechtsanwälte
Michael Ullrich, LL.M. (Information Law)
Attorney-at-Law and
Specialist Attorney for Information Technology Law (IT Law)
Email: info@goldberg.de
