Judgement: Blocking is illegal in Germany

Two weeks ago, the Oberverwaltungsgericht Rheinland-Pfalz decided in a summary proceeding that in Germany blocking is illegal. The GGL, the Gambling Authority for all the regions in Germany had threatened an internet provider based in Rhineland Palatinate with a high fine, if a particular illegal gambling site is not blocked. The GGL has thus suffered its first legal setback.

In December 2021 we had already reported on GambleJoe about whether blocking in Germany makes sense. The Gambling Authority responsible for all regions in Germany, which is based in Halle (Saale) seemed to be convinced that blocking is legal and it may be used. The Authority requested that an internet service provider (ISP) is blocked from foreign gambling services. At the same time the internet provider was threatened with a high fine if this request was not fulfilled. However, during summary proceedings in front of the Rheinland-Pfalz Oberverwaltungsgericht in Koblenz, the Gambling Authority suffered a setback.

OVG: No legal basis for blocking

The Gambling Authority in Saxony Anhalt has started requesting internet providers to block illegal gambling services. As the Oberverwaltungsgericht Rheinland-Pfalz has decided in a summary proceeding there is no legal basis for the GGL to request the blockings. (Az. 6 B 11175/22. OVG). Accordingly, blocking is still illegal in Germany. As stated in the press statement 2/2023 of the OVG Rhineland-Palatinate.

“There is no legal basis for the GGL to order the access provider to block the internet sites of a foreign gambling provider.”

Further on, in the press statement, the choice of words is clearer:

“the demand made on the claimant to block the sites is definitely illegal."

In the current case the controversial gambling provider Lottoland should be blocked. The Internet Service Provider (ISP) which is based in Rhineland Palatinate refused to comply with the order receive from the Gambling Authority. Thus, the case ended before the court. Whilst the Authority was given the right in the first instance, the OVG Judges put paid to the plan. The Internet Service Provider who filed the suit is the Provider 1&1, which is based in Montabaur in Rhineland Palatinate. In Summer of last year we had already reported about the administrative procedures which the Gambling Authority had initiated against Lottoland and Lottohelden.

GGL invoked the new Gambling State Act (GlüStV)

The Gambling Authority had invoked the § 9 Paragraph 1 Sentence 3 Nr. 5 of the State Gambling Act, GlüStV 2021. The GGL then assumes that according to this regulation it could take measures to block the illegal gambling services against the responsible service, according to Paragraph 8 to 10 of the Telemedia Act. However, the relevant measures against the provider were either not promising or could not be carried out. The OVG Rhineland-Palatinate however saw a problem in that the paragraphs 8 to 10 exclude the providers from the responsibility. According to the Telemedia Act, the providers are not responsible for foreign information, to which they provide access, if they did not arrange its transmission and if they had not chosen the addresses themselves and if they had not changed or chosen the transmitted information.

As a consequence, there was no legal basis to request that the illegal gambling site is blocked. The legal decision of the OVG Rhineland-Palatinate in a summary proceeding can theoretically still be changed during the main proceedings.

Conclusion

Currently German Internet Service Providers cannot be forced to block foreign gambling services on the internet. The Gambling Authority responsible for all regions in Germany can presently not proceed and block the foreign gambling services which are not licensed. The Authority can still make use of other tools such as payment blocking to combat illegal online gambling.

Image source: https://pixabay.com/de/illustrations/gerechtigkeit-gerade-zuständigkeit-2071539/