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Created on Friday, 07 November 2008 22:50

Last Updated on Friday, 28 December 2012 18:59

Admin-c’s Liability as a Disturber

Many clubs have a website to present their organization. Often somebody signs the contract with the provider not really knowing what risk is involved in being “Admin-c”. This article reports on the case, where the admin-c of Google was sued because of infringing the personal rights of the plaintiff, an independent journalist, who was allegedly denying the holocaust. OLG Hamburg clearly developed rules for when an admin-c can be held liable for insulting contents with its decision of May 22, 2007 (re 7 UF 137/06).

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The plaintiff is a journalist for a newspaper. The article „The Fairy Tale, the Lie, and the Holocaust“ was published on the USENET and Google provided access to this article. On March 6, 2006 and again later, Google was notified that this article was posted. All postings were entered with a false eMail address using the real name of the plaintiff and afterwards blocked. This article could be understood in such manner that the plaintiff was denying the holocaust. (N.B. to deny the holocaust is subject to severe penalties in Germany!) The plaintiff sued Google’s admin-c to stop publishing this article now and for the future.

The court dismissed this case. It is of no question that this contested article infringes the plaintiff’s personal rights because it leaves the reader with the impression that the plaintiff was denying the Holocaust. This infringement is especially true since the plaintiff has written previous articles wherein he criticized the neo-Nazis. However, the plaintiff has no grounds whatsoever to demand from Google’s admin-c that she prevent once and for that such an article be posted by Google Inc.

A liability on the grounds of troublemaking disturber requires a reasonable possibility to influence action to prevent future infringements. It is undisputed that Google Inc. did not publish nor actively support the publishing of the article in dispute. Therefore, it cannot be considered as a troublemaker. Disregarding the fact that Google Inc. does not own the USENET, it is considered as unreasonable to demand and expect that Google filter each and every newly posted article to prevent such illegal publications. Since Google does not own USENET, it has no possibility to prevent, change or delete any postings. Therefore, Google Inc. cannot be held liable.

An admin-c was also considered a possible troublemaker. However, an admin-c has no possibility at all to influence the action of the person it represents. This is not contradicted by the fact that every admin-c functions as the organization’s agent for the DENIC. The defendant is just an employee, not a legal representative of Google. Her function towards the DENIC is only as an administrative spokesperson of the domain owner Google Inc. in relation to the DENIC. In its standard terms and conditions DENIC insists on having a domestic admin-c to represent foreign domain owners. This agency or representation for the DENIC is not a formal requirement of a public office but only a contractual regulation between the DENIC and the domain owner. The DENIC is no public authority. To understand the contractual agent as a troublemaker would lead to an unreasonably broad term. The consequence of such an unreasonably broad term would be that every employee could be held liable for illegal action even though this person has acted disturbingly but only because he has the possibility to act. This would unreasonably extend the liability.

The plaintiff also wants that future postings be prevented. In order to accomplish this Google would have to constantly monitor USENET to see if the mentioned article had been published again and eventually prevent its distribution. The court considers this cannot be reasonably demanded. The defendant has not the technical means and can only use general search engines to discover such insulting articles. Such manual cleansing measures cannot reasonably be demanded.






Published on the old CMS: 2007/10/5
Read on the old CMS till November 2008: 137 reads