03/02/2020 CURIA - Documents the possibility for Member States of establishing procedures governing the removal or disabling of access to information.’ Article 15(1) of Directive 2000/31, headed ‘No general obligation to monitor’, provides: ‘Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.’ Directive 2001/29/EC Recital 16 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10) states: ‘Liability for activities in the network environment concerns not only copyright and related rights but also other areas, such as defamation, misleading advertising, or infringement of trademarks, and is addressed horizontally in Directive [2000/31], which clarifies and harmonises various legal issues relating to Information Society services including electronic commerce. This Directive should be implemented within a timescale similar to that for the implementation of the Directive on electronic commerce, since that Directive provides a harmonised framework of principles and provisions relevant inter alia to important parts of this Directive. This Directive is without prejudice to provisions relating to liability in that Directive.’ Directive 2004/48/EC Article 2 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45, and corrigendum in OJ 2004 L 195, p. 16), headed ‘Damages’, provides: ‘… 3. This Directive shall not affect: … Directive [2000/31], in general, and Articles 12 to 15 of Directive 2000/31/EC in particular; German law Paragraphs 7 to 10 of the Telemediengesetz (Law on electronic media) of 26 February 2007 (BGBl. I, p. 179), as last amended by the Law of 31 March 2010 (BGBl. I, p. 692) (‘Law on electronic media’), transpose Articles 12 to 15 of Directive 2000/31 into national law. Paragraph 7 of the Law on electronic media is worded as follows: ‘(1) Service providers shall be liable for their own information which they make available for use in accordance with the general law. (2) Service providers within the meaning of Paragraphs 8 to 10 shall be under no duty to monitor the information which they transmit or store, or actively to seek facts or circumstances indicating illegal activity. The absence of liability on the part of the service provider under Paragraphs 8 to 10 shall be without prejudice to general statutory obligations to remove, or disable the use of, information. …’ Paragraph 8(1) of the Law on electronic media provides: ‘Service providers shall not be liable for information which they transmit over a communication network or to which they provide access for use provided that service providers: do not initiate the transmission; do not select the receiver of the transmission; and do not select or modify the information contained in the transmission. The first sentence shall not apply where a service provider intentionally collaborates with a user of its service in order to undertake illegal activity.’ Paragraph 97 of the Gesetz über Urheberrecht und verwandte Schutzrechte (Urheberrechtsgesetz) (Law on copyright and related rights) of 9 September 1965 (BGBl. I, p. 1273), as last amended by the Law of 1 October 2013 (BGBl. I, p. 3728) (‘the Law on copyright and related rights’), provides: ‘(1) Any person who unlawfully infringes copyright or any other right protected under this law may be the subject of an action by the injured party for an injunction ordering the termination of the infringement or, where there is a risk of recurrence, for an injunction prohibiting any further commission of the infringement. The right to seek a prohibitory injunction shall exist even where the risk of infringement arises for the first time. (2) Any person who intentionally or negligently commits such an infringement shall be obliged to indemnify the injured party for the harm arising therefrom. …’ Paragraph 97a of the Law on copyright and related rights provides: ‘(1) Before instituting judicial proceedings for a prohibitory injunction, the injured party shall give formal notice to the infringer, allowing him an opportunity to settle the dispute by giving an undertaking to refrain from further commission of the infringement, coupled with an appropriate contractual penalty. … (3) Provided that the formal notice is justified, … reimbursement of the costs necessarily so incurred may be sought. …’ National case-law on the indirect liability of information society service providers (Störerhaftung) It appears from the order for reference that in German law a person may be held liable in the case of infringement of copyright or related rights for acts committed either directly (Täterhaftung) or indirectly (Störerhaftung). Paragraph 97 of the Law on copyright and related rights is interpreted by the German courts as meaning that liability for an infringement may be incurred by a person who, without being the author of the infringement or complicit in it, contributes to the infringement intentionally (the Störer). In this connection, the Bundesgerichtshof (Federal Court of Justice, Germany) held, in a judgment of 12 May 2010, Sommer unseres Lebens (I ZR 121/08), that a private person operating a Wi-Fi network with internet access may be regarded as a Störer where he has failed to make his network secure by means of a password and thus enabled curia.europa.eu/juris/document/document.jsf?docid=183363&doclang=EN&mode=lst&occ=first 3/10