The Regional Court of Cologne had to decide in a case (judgement of 24.11.2022, ref.: 14 O 404/21) when a photo on the internet is still retrievable in the sense of a copyright infringement.
What had happened here? The defendant had used a photo in an Ebay offer for which it had no rights. The plaintiff issued a warning against the use and demanded the submission of a so-called cease-and-desist declaration with a penalty clause. The defendant issued the cease-and-desist declaration with the promise of a contractual penalty in the event of a repeated infringement and ended the Ebay offer.
But that was not enough for the plaintiff. The terminated offer could still be called up with the photo and was therefore visible. The plaintiff issued a second warning and, in addition to reimbursement of his legal fees, demanded payment of a contractual penalty of 4,000.00 euros and damages of 300.00 euros.
The defendant objected in the court proceedings that the BGH had rejected a copyright infringement in a comparable case in 2021. In that case, according to the judges, the mere accessibility of copyright works via a 70-character URL was not sufficient for the assumption of copyright infringement.
However, the Regional Court of Cologne did not follow this line of argument. In this case, the photos were also accessible via Ebay’s internal search function and not only by entering a URL. Thus, it was not unlikely that many other persons called up the expired offer. Accordingly, saving the URL was not necessary at all.
Result: The defendant had to pay the plaintiff:
4,000.00 euros in contractual penalty
300.00 euros in licence damages
2,510.42 euros in extrajudicial lawyer’s fees.
In addition, the defendant had to bear the entire legal costs (approx. 6,500.00 Euros) as well as its own pre-court lawyer’s fees. The total damages for the defendant thus amounted to more than 13,000.00 euros …
The case concerns a problem that is ubiquitous in warnings about photos on the internet. The infringer must ensure that the photos can no longer be accessed in connection with the specific unlawful use. To do this, it is not enough to simply end the offer on Ebay. The “memory” of Ebay must also be deleted so that terminated offers can no longer be accessed. The infringer must therefore also request Ebay to delete the terminated offer completely from its memory.
The case is similar for the removal of photos from websites. Here, it is not sufficient to delete the photos from the specific website. According to unanimous case law, Google’s memory, the so-called “Google cache”, must also be deleted (and, according to some courts, also the memory of the search engine Bing). Unfortunately, this can only be done with a cumbersome procedure, with which many people who are not so familiar with the internet have their problems. In the end, their only option is to turn to an expert, which again involves costs. However, this is in any case cheaper than the risk of being warned again. After issuing a cease-and-desist declaration with a penalty clause (only German lawyers can come up with such a word monster), the rights holder can demand payment of a contractual penalty, which often amounts to several thousand euros.