Higher Administrative Court of Rhineland-Palatinate, Press Release No. 2/2023
There is no legal basis for the blocking of Internet pages of a foreign gambling provider ordered by the Joint Gambling Authority of the Federal States against an access provider. This was decided by the Higher Administrative Court of Rhineland-Palatinate (Oberverwaltungsgericht Rheinland-Pfalz) in Koblenz in summary proceedings.
The Joint Gambling Authority of the Federal States in Halle (Saale) is responsible for combating illegal gambling on the Internet and advertising for it across all federal states. By decision dated October 13, 2022, the authority ordered the applicant - a provider of telecommunications services domiciled in Rhineland-Palatinate - among other things to block certain Internet pages (domains) with gambling offers from two lottery companies domiciled in the Republic of Malta within the scope of its technical capabilities as an access intermediary, so that access to the Internet via the access points provided by the applicant in Germany was no longer possible. The applicant filed a complaint against this and at the same time sought provisional judicial protection. The Administrative Court of Koblenz rejected her application for interim relief. In response to the appeals lodged against this by the applicant and the other gambling providers, the Higher Administrative Court amended the decision of the Administrative Court and ordered the suspensive effect of the action against the contested blocking order to be suspended.
The blocking order issued to the applicant was clearly unlawful. It could not be based on the enabling provision in Section 9 (1) sentence 3 no. 5 of the Interstate Treaty on Gaming 2021 - GlüStV 2021 - which entered into force on July 1, 2021. According to this provision, the respondent as gambling supervisory authority may, after prior notification of unauthorized gambling offers, take measures to block these offers against responsible service providers within the meaning of sections 8 to 10 of the German Telemedia Act (Telemediengesetz - TMG), in particular access intermediaries and registrars, if measures against an organizer or intermediary of this gambling proved to be impracticable or not promising. However, these requirements were not met. The applicant was already not a responsible service provider within the meaning of Sections 8 to 10 of the German Telemedia Act (TMG), so that it was not necessary to decide whether the other requirements of the provision for intervention against the applicant were met. The court does not share the view of the respondent that the responsibility of the service providers pursuant to Section 9 (1) sentence 3 no. 5 GlüStV 2021 is determined by this provision itself, without reference to a responsibility pursuant to the German Telemedia Act. According to the provision in Section 8 (1) sentence 1 of the German Telemedia Act (TMG), which is relevant for the applicant as an access provider, service providers are not responsible for third-party information to which they provide access for use, unless they have initiated the transmission (No. 1), selected the addressee of the transmitted information (No. 2) and selected or modified the transmitted information (No. 3). The applicant fulfills these requirements for exclusion of liability. Neither did it initiate the transmission of the gambling content nor did it select it or the addressee. According to Section 8 (1) sentence 3 TMG, the liability privilege does not apply if the service provider intentionally cooperates with a user of its service in order to commit illegal acts. However, such a case is obviously excluded here.
The challenged blocking order can also not be based on the catch-all authorization of Section 9 (1) sentence 2 GlüStV 2021, according to which the authority responsible for all states or in the respective state can issue the necessary orders in individual cases. In this respect, the application of this general power to take action is precluded by the special statutory provision of Section 9 (1) sentence 3 no. 5 GlüStV 2021, which contains a conclusive provision for taking measures to block unauthorized gambling offers against service providers.
Decision dated January 31, 2023, file number: 6 B 11175/22.OVG
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The applicant in this case is 1x1 AG, Montabaur.
