Steffi Graf wins German case on liability of web host

According to Associated Press, the former tennis star asked Microsoft Germany to remove the pictures that appeared on its site, showing her head morphed to another woman's nude body. Microsoft complied with her request; but Graf asked the company to sign an undertaking that they would not appear again. Microsoft refused and Graf sued.

In October 2001, a lower court ruled in favour of Graf. Microsoft appealed, but on Tuesday the state appeals court in Cologne upheld the lower court’s ruling. Microsoft will be required to pay a fine if similar photos appear on its site in future.

What makes the decision curious is that, according to the press reports, the area of the Microsoft site in which the photos appeared was unmoderated. Users are free to post text and images to this area.

Generally, web hosts in Europe are not liable for the content that others post to their sites if they do not moderate the site – provided they remove or disable access to offending material immediately upon being notified of its presence.

Struan Robertson, editor of OUT-LAW.COM, commented:

“Microsoft refused to guarantee that similar photos would not appear on its pages in future. Presumably, this is because it does not want to moderate the site. The full judgment is not yet available, but it appears from media reports that the court did not accept Microsoft’s refusal to police the content posted by users to its site. If that is the case, the ruling will be of concern to web hosts, because it runs directly against the important principles established by the E-commerce Directive.”

A German decision of 1998 became one of the drivers for the E-commerce Directive, when Compuserve’s managing director was sentenced to two years in prison because the ISP unknowingly hosted child pornography. Although the case was overturned on appeal, the original sentence provoked enough industry concern for the E-Commerce Directive to include the principle that ISPs and other web hosts are not required to monitor content.

Robertson concluded, “There may be more to this case than we know at present. But on the face of it, it’s a disturbing decision.”

A spokesman for Microsoft has said that the company is “examining further legal steps.”