The European Court of Justice (ECJ) has strengthened the position of platforms such as Cyando (share hosting platform) and YouTube (video sharing platform). The German Federal Court of Justice had submitted various questions to the ECJ on the interpretation of Union law. The ECJ’s answers mean that such platforms regularly do not have to be liable for copyright infringements by their users insofar as they have no knowledge of them (judgment in joined cases C-682/18 “YouTube” and C-683/18 “Cyando”).

The commercial law firm HEUSSEN represented in the factual instances and at the ECJ with a team led by the Munich partner Dr. Hermann Waldhauser, who has already been advising the Swiss digital company Cyando since their acquisition of the sharehosting platform “” in 2012. Another team member was Dr. Markus Junker (Partner), specializing in IT, IP and media law. Dr. Thomas Winter of Rohnke Winter, Karlsruhe, represented the company before the Federal Supreme Court.

In the Cyando case, the Elsevier publishing group defended itself against the fact that several works were posted on Cyando’s sharehosting platform to which the publisher exclusively held the rights. The publisher had not given permission for this. The ECJ ruled that a “communication to the public” of protected content on video-sharing or sharehosting platforms is in principle only made by the posting user and not the operator. A different assessment would only be permissible if the operator could be accused of a role going beyond the mere provision and operation of the platform, as well as the intentionality of its actions. However, this could only be affirmed in exceptional cases, for example, if an operator does not take suitable technical measures to combat copyright infringements credibly and effectively.

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