Sony won a victory at the Leipzig Regional Court on 1 March in the much-publicised case against the Swiss Quad9 Foundation (file no. 05 O 807/22). The court ruled that the regulations of the German Telemedia Act (TMG) and the associated liability privilege do not apply, since a DNS resolver is not a service provider. The court also did not recognise a “Stoererhaftung” (interference liability), which had been assumed in the preliminary injunction proceedings, but found Quad9 to be a party to the offence. “Stoererhaftung” is a legal construct that only exists in Germany and translates into English as ‘interference liability’ or, alternately, as ‘liability as a co-liable partner’.
eco – Association of the Internet Industry is backing Quad9 in its legal dispute against Sony. From the association’s point of view, the judgement is at odds with the will of the European legislator, which literally states in the Digital Services Act that DNS services should also be privileged in terms of liability. Furthermore, eco fears consequences for the entire industry, especially for small providers.
Klaus Landefeld, eco Board Member for Infrastructure and Networks, said:
“Here, a worrying development towards the expansion of the liability of intermediary services such as Quad9 is emerging in the decisions of the courts. The Quad9 problem at hand affects the entire industry. Internet services are being held liable here for things that have nothing at all to do with the disputed service – Quad9 does not host the content, give access, or otherwise have any business relationship with the disputed website. All they do is translate a call to a domain name into a machine-readable IP address. To deduce from this that Quad9 would be elementarily involved in the provision of illegal content is, in my view, incomprehensible. As a neutral Internet infrastructure, DNS services must also be treated like Internet access providers who are exempt from liability.”
Quad9 operates an independent recursive DNS resolver and was already ordered by injunction in 2021 to refrain from resolving certain domain names into IP addresses. Quad9 then prevented the resolution of the disputed domain names for users in Germany by means of geoIP at its locations in Germany. The court of first instance in Leipzig has now ruled on the merits of the case. Previously, the Cologne Regional Court had also assumed that infrastructure providers were liable for the offence.
Quad9 has now announced that it will appeal against the judgement. eco is supporting Quad9 in these proceedings. Donations to the non-profit foundation are possible here: https://quad9.net/donate.