“IFPI v. I&Q Group and Hellspy”

The legal regulation limiting the liability of the provider of an information society service consisting in the storage of information provided by the user (public data storage service) according to Sec. 5(1) of the Act on Certain Information Society Services does not apply when assessing private obligations arising from a tort of an unfair competition, which do not result from the liability of the provider for the content of information stored at the user’s request (i.e. for interference with a private right to intangible property affected by this information), even if these obligations are economically related to the provision (to the manner of provision) of this service.

Where the provider of such a service, which is operated in a form that enables users to threaten or violate intellectual property rights to a competitively significant extent through the information they store, pays remuneration to those users, the amount of which is dependent on the number or extent of downloads by third parties of the data files stored by them, without reasonably verifying that such remuneration is not paid in connection with the threatening or violation of intellectual property rights, it commits in principle unfair competition according to Sec. 2976(1) of the Civil Code.

The provision of this service using an electronic search engine for stored information does not constitute an act of unfair competition merely because the search results may include a data file whose content threatens or violates intellectual property rights, as long as the provider of this service neither (actively) influences the search results beyond the automated process itself nor edits them in such a competitively significant manner that he would thereby enter the market for making intellectual property available.