A blocking order against an access provider not responsible under Sec. 8-10 TMG of Internet pages of a foreign online gambling provider is inadmissible
A blocking order against an access provider not responsible under Sec. 8-10 TMG of Internet pages of a foreign online gambling provider is inadmissible – OVG Rheinland-Pfalz, Decision of 31.01.2023 (6 B 11175/22):
There is no legal basis for the blocking of websites of a foreign online gambling provider ordered against access providers if the latter is a non-responsible party under the TMG. The application of the catch-up clause of Section 9 I 2 GlüStV 2021 is precluded by Section 9 I 3 No. 5 Hs. 1 GlüStV 2021. This was recently decided by the Rhineland-Palatinate Higher Administrative Court (OVG) in proceedings for interim legal protection and the preceding decision of the Koblenz Administrative Court was amended – OVG Rheinland-Pfalz, Decision of 31.01.2023 (6 B 11175/22).
Facts
The Joint Gambling Authority of the German Federal States ordered the blocking of Internet sites by the access provider of a foreign online gambling provider of what the authority considered to be illegal online gambling in Germany. The access provider took legal action against this. It is now seeking an injunction to suspend the action and has now been successful in the second instance.
Decision
In principle, objections and actions for annulment have a suspensive effect, unless otherwise applicable in individual cases. And according to Section 9 II GlüStV 2021, other provisions apply, among other things, to the enforcement of orders issued by the gambling supervisory authority within the meaning of Section 9 I 3 GlüStV 2021. In such cases, the addressee of a measure must itself seek to initiate the suspensive effect of a legal remedy ordered by way of interim legal protection. The court will rule in favor of the adressee, if the interest in suspension outweighs the interest in enforcement of the measure. The interest in suspension outweighs the interest in enforcement if it is more likely that the addressee of the measure will win the legal dispute on the merits.
That is precisely what the OVG assumed in the present case. The blocking order issued to the access provider was obviously unlawful. Section 9 I 3 GlüStV 2021 does not contain a special regulation on responsibility, but refers to the regulations in Sections 8-10 TMG. Under certain conditions, the service providers named therein are not responsible for third-party information that they merely provide. Specifically, the court considered the requirements of Section 8 I TMG, relevant for access providers, to be met. The access provider did not independently initiate the transmission, nor did it select the addressee. It also did not change the transmitted information.
Section 9 I 3 GlüStV 2021 does not contain a separate provision on responsibility. There is no room for the assessment of responsibility detached from the TMG, as advocated by the Joint Gaming Authority of the Federal States. The privileging of providers under the conditions of the TMG was intended by the federal legislature precisely in order to dispel the concerns of the European Commission. The meaning and purpose of the State Treaty on Gambling 2021 also do not allow anything else. Due to the special provision contained in Section 9 I 3 GlüStV, there is also no room for recourse to the general catch-up clause in Section 9 I 2 GlüStV in conjunction with the general provisions on claims non responsible parties.
As a result, it can be stated that the OVG has strengthened the legal position of access providers of online gambling providers and has set limits to the actions of the Joint Gambling Authority of the Federal States in this context. This is to be welcomed in light of the freedom to provide services in the internal market. It is common for German authorities to attempt to make it more difficult for online gambling providers that held a lawful license from a European member state to offer their services in Germany in order to limit supposedly illegal offerings. In most cases, however, these providers are even subject to stricter supervision and have player protection standards equivalent to those in Germany.
Our partner Thomas Hertl and his team are at the full disposal of access-providers as well as online gambling providers to advise them in the field of gambling law.
Thomas Hertl (Partner) Tim Wenzel (Research Associate)