In a decision of 23.10.2024, I ZR 112/23 – Manhattan Bridge, the Federal Court of Justice significantly tightened the liability of online marketplaces (sales platforms).
In the specific case, a small television set was offered for sale on a sales platform. In a so-called affiliate system (the platform allows various retailers to offer their products on the platform and sell them via the platform), the sales platform had used a product image (presumably provided by the manufacturer) to illustrate the television to be sold, in which the television and the remote control could be seen. The product image also showed an illuminated bridge (the Manhattan Bridge) on the TV screen.
The plaintiff was the photographer of the photo showing the bridge that had been mounted on the TV screen. The photographer issued a warning letter about the television in the offer of retailer X. Dealer X’s product was then removed from the platform. However, the author was already aware of an identical offer with the same image on the screen from another retailer Y when the warning was issued. He did not mention this in the warning letter. The second offer from retailer Y therefore remained on the platform and was not deleted.
The proceedings now concerned the responsibility of the platform for this second, but not explicitly identified, case of infringement. The plaintiff argued that the defendant should have searched for and deleted the same images (i.e. the offer of retailer Y) after the warning letter against retailer X. Therefore, he was obliged to cease and desist, provide information and pay damages. The exact details of the proceedings and the outcome of the proceedings are less important here. What is important, however, are the findings that the CoJ made in general regarding the liability of sales platforms:
The central finding is that the (copyright) case law of the ECJ and the CoJ in the YouTube and Cyando, uploaded II and YouTube II decisions (decisions on video sharing and sharehosting platforms) are also applicable to online marketplaces (sales platforms).
This means that the operator of the sales platform must remove the infringement immediately after being notified of it. If this is not done immediately (within 48 hours), the platform is responsible for the infringement. Furthermore, the platform operator must check the platform for similar infringements within the scope of what is technically and economically reasonable and block or delete infringing content.
The CoJ made an exception to this insofar as the product itself was unobjectionable. Only the presentation of the product image with the bridge on the screen was objectionable. As a rule, the platform operator’s duty of review therefore only extended to similarly presented offers, but not to any presentation of the bridge photo in other products.
However, a limitation of the liability of sales platforms lies in the fact that the CoJ does not want to put them on an equal footing with video sharing and share hosting platforms, at least in one aspect. There, an exemption from liability pursuant to Art. 14 para. 1 of Directive 2000/31/EC (Art. 6 of Regulation [EU] 2022/2065) is only granted if the platform operator does not play an active role that gives it detailed knowledge of or control over the content uploaded to the platform.
For an online marketplace (sales platform), the ECJ has already previously specified that the platform operator does not take a neutral position, but plays an active role when it provides assistance, which consists, among other things, of optimizing the presentation of the relevant sales offers or advertising these offers (see ECJ, GRUR 2011, 1025 – L’Oréal and others).
Because of these differences between video sharing and share hosting platforms on the one hand and sales platforms on the other, the case law on the communication to the public of copyrighted works is not transferable to the reproduction of works on the servers of a sales platform. The liability of the first-mentioned companies is therefore not transferable to the sales platform.
Therefore, in the event of an infringement of the right of reproduction on a sales platform, liability remains in accordance with the criminal law principles of perpetration and participation. If the objective or subjective prerequisites for liability as a perpetrator or participant are lacking, only liability as a disturber obliging to cease and desist and removal can be considered (see CoJ, GRUR 2020, 738 – Internet-Radiorecorder I). When reproducing a work on a sales platform (without the knowledge of the platform operator or a failure to search and delete), the liability for causing nuisance, which the ECJ has largely abolished for communication to the public on video sharing and share hosting platforms, therefore continues to exist.
