Liability 2.0 – Does the Internet environment require new standards for secondary liability? An overview of the current legal situation in Germany

While the notion of secondary liability (‘Störerhaftung’) is a known legal instrument in Germany that has been used in connection with infringements of intellectual property rights and other recognized forms of unlawful behavior, such as acts of unfair competition, its requirements and scope are not yet determined. This is, particularly true with respect to legal offences committed online, i.e. through services provided by Internet Service Providers (‘ISPs’). In the following, the author will (1) briefly address the origin and the scope of the notion of secondary liability; (2) show how recent court decisions have addressed and applied this form of liability to ISPs; (3) comment on these developments; and (4) point out the impact of technology on the notion of secondary liability and the legal consequences thereof.