Liability of the Domain Registrar for Subdomains

A domain registrar has no relationship with the operators of the third-level domain. Does it nevertheless incur liability as an interferor for content posted on the third-level domain? The Court of Appeal (Kammergericht) Berlin had to decide on this matter.

A private individual sought to obtain an injunction from the registrar against the publication of their residential address on an internet domain. The affected person was of the opinion that this violated their general right to personality and therefore that they also had claims against the registrar of the domain .

The registrar disclaimed any responsibility for content on the third-level domain (subdomain). The domain holder had permitted an unknown third party to operate a third-level domain. In any case, it could not be held liable for content infringing personality rights on such domains.

Decision of the Court

In its order of 10.07.2014 – Az. 10 W 142/13, the Kammergericht Berlin proceeded on the basis of a broad concept of an interferor. Even the registrar, who merely provided legal assistance to the actual infringer in using the internet, could be held liable as a so-called interferor. The prerequisite was that it had the legal possibility to prevent the infringement. It possessed this possibility by virtue of its contract with the domain holder. The fact that the domain holder permitted an unknown third party to operate a third-level domain that contained content infringing personality rights did not eliminate the registrar's status as an interferor.

It was irrelevant whether the registrar had any influence over the content of the publications. From the point at which the registrar became aware of the infringement, the domain registrar had to take the necessary steps to prevent it.

The court explained in respect of the question what specific steps must be taken: The registrar must exert pressure on the domain holder, who is its customer, in order that the latter in turn exerts pressure for the removal of the relevant post. If this step proves unsuccessful, the domain registrar must even delete the entire domain.

Conclusion

Liability of an interferor is also applied to the domain registrar in cases where content infringing rights is posted not by the domain holder but by its customers on a subdomain.