Sunday, 26 February 2012

Foreign websites "accessible from anywhere in Germany"

BERLIN - German internet service providers do not have to block foreign-based websites, a German court has ruled. The Administrative Court of Düsseldorf decided that Deutsche Telekom, one of Germany's biggest internet service providers, did not have to block its customers from accessing foreign gambling and gaming websites, even if they are considered 'illegal' under German law. 

The DENIC, the central registry for all domains under domain '.de', won a similar proceeding last December. The Düsseldorf Court said in that case the central registry did not have to act because it is not responsible for the content of websites. The ruling has shocked German politicians since "the decision makes clear that German authorities do not have, and will not have, effective means to prevent German citizens from participating in foreign gambling activities", said Dr. Christoph Enaux, Counsel at Olswang LLP. "Foreign gambling websites are currently accessible from anywhere in Germany."

The Judge has "applied the current German Telemedia law, under which a provider cannot be held responsible for the website content", said Barabara Ploeckl, a Partner at Freshfields Bruckhaus Deringer. "The access provider's sole knowledge of the fact that certain content on a website is illegal does not establish a responsibility under the Telemedia law". 

The German Telemedia Law is in line with the European E-Commerce Directive, which protects ISPs from liability for material they have not created or monitored. "If the Federal States really want to dry out the 'grey' foreign gambling market, it therefore seems indispensable to establish a regulatory regime which is attractive enough to prevent citizens from participating in such foreign activities", said Enaux. "The current draft Interstate Treaty does not fulfil this goal." 

The only option for authorities "is regulated in Article 9 of the current draft of the new Interstate Treaty. The provisions give allowance to the authorities to request from banks and financial services institutions, after prior notice, to stop processing payments in connection with illegal gambling," said Stefan Bolay, Junior Partner at Hambach & Hambach. "[This ruling] shows once again that the internet cannot be switched off. The only reasonable way to control internet gambling is to regulate the market as Schleswig-Holstein is currently doing."

Michiel Willems © 2012 CP Publishing Ltd. London, UK. Picture: