Judgment: Google liable as a tortfeasor for fraudulent advertisements under DSA

The Düsseldorf Regional Court has issued an interim injunction in proceedings between Stuttgart company Skinport and Google Ireland and has now confirmed it after an oral hearing. The online marketplace for skins for Counter Strike 2 has not only successfully taken action against unacceptable phishing advertisements through Google Ads for the first time. In fact, the responsible civil chamber has even decided that Google is liable as a disruptor in such cases under the Digital Services Act (DSA): The operator of the advertising service must therefore be liable to fraudsters in the “core” – i.e. identically structured – We should stop advertising about that.

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With interference liability enshrined in German law, third parties who only contribute to the violation of protected property can be held responsible. Article 8 of the DSA does not impose any general obligation on intermediary service providers – such as Google in this case – to monitor the information they transmit or store or to actively investigate circumstances indicating illegal activity. The EU legislature has essentially adopted exemptions from liability from the E-Commerce Directive, which was reflected in this country in the Telemedia Act (TMG). Whether interference liability is compatible with DSA requirements has been a headache for lawyers.

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Google argued before the regional court that it had no “knowledge that would give rise to liability”. According to its lawyers, the group has heard about the controversial text ad dated June 8. For the first time in 2023 with the delivery of the first court order on June 20. We will know in 2023. The ad and advertiser were then blocked so that they could no longer serve comparable phishing ads. However, the requirements for liability as an operator of a hosting service under Article 6 DSA are not met. There is also no obligation to take preventive action against relevant future legal violations.

Recourse to “Enforcement Directive”

“The objection is unfounded,” the Civil Chamber explains in its now-published statement. Decision of 15 January (Af.: 2A O 112/23). Google is not liable as a culprit or a participant, but as a disruptor. Because: “Intervention is consistent with the liability requirements” of Article 6 DSA now applicable to intermediary service providers. It also leaves the option “for a judicial or administrative authority under the legal system of a Member State to require the service provider to stop or prevent an infringement”.

The three judges agreed that national law cannot be used directly in the process. However, the content of this autonomous right to injunctive relief is defined in more detail by Article 11 of the Directive “on the enforcement of intellectual property rights” in relation to the liability of “intermediaries”. Accordingly, in the event of a threatened infringement of the relevant property right, the rights holder may apply for a court order against the intermediaries whose services are used by a third party for this infringement.

Court does not believe Google is overwhelmed by testing requirements

Whether this is an option must be examined on a case-by-case basis, the decision said. Here, Skinport’s warning letter on May 25, 2023 and another lawyer’s email shortly thereafter may trigger the search engine operator’s liability for interference. The latter was “sufficiently specifically informed about the apparent legal violations” so that he would be “liable as a disinheritant for ongoing – essentially similar – violations.” It is possible for Google to “find the specific ad that is being attacked.” The group, which acts with the intention of making a profit, can also easily identify which types of advertisements the inspection obligations extend to and which infringing actions should be avoided. As a result routine monitoring is not required.

Skins are virtual items such as different textures for weapons that can be customized to suit people in the game. In the controversial Skinport-label ads, the target URL turned out to be a replica of the marketplace’s website. As a result, “payment and login data from Plaintiffs’ Steam accounts were accessed,” the court writes. It viewed this as a trademark violation. Skinport attorney David Ziegelmeyer Thrown light onThis may be “the first decision on search engine (disruptive) liability under the DSA”. The decision is not yet final: Google may appeal.

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