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Created on Sunday, 14 June 2009 18:50

Last Updated on Monday, 10 March 2014 20:12

You're Off Limits! - Virtual Ban on Entry to a Business Website

The OLG Hamm determined in its decision of June 10, 2008 (re 4 U 37/08) whether the owner of webportal may deny entry by blocking a certain IP address.

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The parties of this case, Hew and Pac, distribute printer accessories via the Internet. They can therefore be considered as competitors. Hew visited Pac's website on March 19, 2007 over 652 times within two hours. Hew wanted to check if Pac really had more than 5,000 items on stock - as Hew alleged. Soon afterwards Pac's system automatically started blocking Hew's IP address in order to prevent him from visiting the site. Hew was fuming and admonished Pac for prohibiting his access and claimed it to be a targeted hindering following §4 no. 10 UWG. Pac ignored Hew, so Hew went to court to seek legal recourse. Hew wanted to keep Pac off his site. During the court proceedings, Pac turned the table and countersued Hew on exactly the grounds of directly hindering competition pursuant to §4 no. 10 UWG in order that Hew re-allow Pac access to Hew's site.

The court held that a virtual "ban on access" via an automatic blocking of a certain IP address is generally permissible. The court dismissed the complaint and countercomplaint. Regarding the complaint, the court argued that the automatic blocking is not an intentional ban directed against Hew. Automatic blocking is no hindrance on purpose in terms of §4 no. 10 UWG but a reasonable response to an illegal action of Pac.

Considering the countercomplaint, the court held Hew has all the rights of a normal customer to check Pac's offer. However, since Pac acted significantly differently than a normal customer with his massive visiting, he effected a breakdown of Pac's system when hitting it every 11 seconds. Hew is permitted to protect his system against attacks. The concerned party's interest to protect his system outweighs the general interest of a customer or competitor to check the offer for any unfair competition.

Remark:

Automatic security systems, that block conspicuous activities from visiting a website are generally permissible. As long as such security systems do not actively filter out certain competitors in order to prevent them from checking one's offer in the internet, there is no hindrance of competition.  

Our suggestion is not to jeopardize the security of your webshop by not using any security measures at all but not to use them like a spam filter. This means that a blacklisted entry from a database will intentionally not have access to the site.

First published by Max-Lion Keller, translated and revised by the publisher