In its ruling of October 18, 2017 (case no.: 142 C 2945/17), the Munich District Court strengthened the rights of authors in social media. If a third party shares photos on their own Facebook page without authorization – without first obtaining a license – the author is entitled to claim damages.
In its ruling, the Munich District Court follows a strict copyright protection line and differentiates between different actions when “sharing” a post on Facebook. In this differentiation, the Munich judges’ ruling is more detailed than that of the ECJ.
Local branch of a political party shares photos on Facebook
In 2016, the district association of a political party shared a post by another user on its Facebook page for two months. The post was shared in such a way that it was not only embedded via a hyperlink, but the entire post – including photos – was displayed on the user’s own page. The photos were integrated into the post without a copyright notice and shared on Facebook in this way.
Local association ordered to pay – MFM table decisive
After receiving a warning, the local association deleted the post shared on Facebook and issued a cease-and-desist declaration with a penalty clause; however, it did not want to pay damages, which is why the Munich District Court was allowed to deal with the case.
The Munich District Court upheld the copyright holder’s claim and awarded the author of the photos around EUR 1,900. The amount of damages was based on the MFM table; the author received an amount of EUR 268 per photo, which was, however, doubled due to the lack of copyright attribution. In addition, there were the lawyer’s fees for the pre-trial warning.
“Sharing” on Facebook can already be copyright infringement
According to the Munich judges, even “sharing” a Facebook post can constitute a copyright infringement. Anyone who embeds photos on their own Facebook page – whether by sharing, simply posting or in any other way – is infringing the author’s right of making available to the public (Section 19a UrhG). It does not matter that the protected work has already been illegally distributed by another user. By sharing the photos on their own Facebook page, the photos were made publicly accessible to a larger group of recipients, which in turn constitutes an act of use.
The court is also convinced that this assessment does not contradict the judgment of the ECJ (NJW 2016, 3149). The facts there differed significantly from the present case: the website in question in the cited legal dispute did not display the photos themselves, but instead contained a hyperlink to the photos with a brief comment. The photos were only displayed when the link was called up.
In this case, however, the local association decided not only to link to the third party’s post, but to post the images directly on its own site.
Caution is advised when sharing posts on Facebook
Even if the local association was not initially aware of any fault here, it must pay compensation to the author. This is because even a negligent act leads to an infringement of the law. Anyone wishing to use another person’s copyright-protected photo must obtain certainty about the existence of the protection and the scope of the right of use. In this respect, there is an obligation to check and inquire for those who want to share the Facebook post.
However, it must be examined whether this is really a new reproduction or not an “embedding” as in the case of framing – this would be permitted according to the ECJ (judgment of October 21, 2014 – C-348/13).
The obligation to review goes so far that the user must fully review the chain of individual transfers of rights himself and may not rely on the review by a third party – who has already previously shared the contribution.