The Court of Justice of the European Union has ruled in Case C-299/17 VG Media Gesellschaft zur Verwertung der Urheber- und Leistungsschutzrechte von Medienunternehmen mbH v Google LLC that a German legal provision prohibiting internet search engines from using newspaper or magazine snippets without the publisher’s authorisation must be disregarded in the absence of its prior notification to the European Commission.

The German legal provision constitutes a rule on information society services and, therefore, a ‘technical regulation. As such, the draft must be notified to the European Commission in advance. 

VG Media, a German copyright management organisation, brought court action for damages against Google, claiming that Google infringed rights related to copyright of some of its member publishers of newspapers and magazines. It claimed that from 1 August 2013, Google used, on its search engine and its automated news site ‘Google News’, newspaper or magazine snippets produced by VG Media’s members without paying a fee in return.

The referring German court asked the CJEU whether the applicable German law constituted a ‘technical regulation’ under Directive 98/34/EU concerning technical standards and regulations, which should, accordingly, have been notified to the European Commission to be enforceable against individuals.

The CJEU ruled that a provision such as that at issue constitutes a rule on information society services and, therefore, a ‘technical regulation’. That provision specifically targets the services in question since it appears that its main aim and object was to protect publishers of newspapers and magazines against copyright infringements by online search engines. In that context, protection appears to have been considered necessary only for systematic infringements of works of online publishers by information society service providers.

To the extent that such a rule is specifically aimed at information society services, the draft technical regulation must be subject to prior notification to the European Commission. Failing that, an individual may rely on it being disapplied.