Most courts tend to be reluctant to impose administrative fines. However, this is not to be relied upon, as shown by a recent decision of the Higher Regional Court of Dresden. Google, as the operator of YouTube, has to pay a fine of €100,000.
Fines for first offenses are usually in the four digits.
We recently reported that a court in a family law case imposed a fine of €6,000 on a mother for failing to comply with court orders. This was already considered a high fine in such a case, especially since the fine range there goes up to €25,000.
In the case of the Higher Regional Court of Dresden (OLG Dresden, decision of June 29, 2021 – 4 W 396/21), however, a judgment was even disregarded. In this case, the fine can be as high as €250,000 or six months' imprisonment. In practice, fines in the five-digit range are rarely imposed. Even if the companies involved generate hundreds of millions in sales, fines for a first offense usually remain in the four-digit range.
However, the operator of YouTube had treated the Higher Regional Court of Dresden in a particularly brazen and disrespectful manner.
Video should be reactivated
In its ruling of April 20, 2021 (4 W 118/21), the Higher Regional Court had ordered YouTube to refrain, under threat of administrative penalties, from removing a certain video uploaded to the platform by the plaintiff in the injunction
from the defendant's platform and/or to issue the plaintiff with a warning for uploading the aforementioned video.
Since the video had been blocked by YouTube at the time of the pronouncement on April 20, 2021, such an injunction also includes the obligation to unblock the blocked video and to withdraw the previously issued warning. This obligation takes effect immediately upon pronouncement of the judgment. The judgment must therefore be observed immediately and the appropriate actions must be taken to implement it. In the present case, there was no reason for further deliberation anyway, as there was no further appeal against the judgment. It was a so-called interim injunction procedure, i.e. a preliminary injunction. Youtube could only enforce the so-called main proceedings, but would first have to observe the judgment in the interim injunction proceedings.
Behavior of the video platform
The operator of the video platform apparently had a different understanding of the legal system and did not immediately implement the ruling. It can be inferred from the decision to impose a fine that he was of the opinion that he was entitled to review this ruling by a German court himself because he
had seen a violation of their "Guideline on Medical Misinformation about Covid-19" in the video and therefore wanted to "carefully weigh the respective consequences of the decision of the Higher Regional Court of Dresden and its options".
. The court could not allow the international platform operator, who was represented by a lawyer, to get away with this. After all, our social system is based on the fact that court rulings are to be observed without restriction. Because ten days after the pronouncement of the judgment, i.e. on April 30, 2021, the video had still not been reactivated, the person concerned had filed a so-called application for an administrative fine on that day. This gave the courts the opportunity to intervene against the disregard of the judgment. Incidentally, the judgment was not actually implemented until May 14, 2021, when the video was made available again.
District Court: €1,000 fine
As described above, courts are often reluctant to impose fines. First, the Regional Court in Chemnitz had to decide what the appropriate fine would be. As the court of first instance in the fine proceedings, it only imposed a fine of €1,000. Evidently, the Regional Court had assumed that technical reasons were preventing the video from being unblocked.
Higher Regional Court: €100,000 fine
The Higher Regional Court could not understand this reasoning, because for the Higher Regional Court the true reason, which was also admitted by Google, was Google's own internal review of the judgment. The court saw this as intentional disregard of the court injunction. The violation is also serious in view of its duration. The court ruled that the economic power of the platform operator had to lead to a very high fine.
In favor of the video platform, the Higher Regional Court ruled that this was a first offense. One speaks of a first offense when a first administrative fine is imposed because a court order is disregarded. There are brazen offenders, however, who are not impressed by a fine, i.e. although the fine has been imposed, they still do not change their behavior. Then the creditor can initiate enforcement proceedings again. This then concerns a repeated violation in which the fines are significantly higher. The Higher Regional Court has already indicated that in the present case, a fine of €250,000 would have been imposed for such a repeated infringement.
However, since this was a first offense, the court left room for a higher fine in the event of a repeat offense and set the fine at €100,000. No right of appeal to the Federal Court of Justice was granted.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.