SKW Schwarz secures a victory for Dr. Eckart von Hirschhausen against providers before the Higher Regional Court of Frankfurt

Host provider must delete semantically identical deep fakes – a legal milestone

SKW Schwarz has achieved a milestone in the fight against deep fakes on behalf of the renowned physician and TV moderator Dr. Eckart von Hirschhausen at the Higher Regional Court (OLG) in Frankfurt am Main. In an expedited proceeding, the OLG ruled that a provider who has been notified of an infringement, warned, or sued must proactively and actively address and delete other semantically identical infringements on its platform.

“Semantically identical,” the court stated in its now-published decision, refers to posts with identical text and image, but also those with different formatting (resolution, size/cropping, use of color filters, framing), including mere changes in typographic symbols or the addition of elements such as so-called captions that do not alter the overall meaning.

With the decision, the OLG Frankfurt continues its case law on the “Künast Meme,” while also taking into account the recently enacted Digital Services Act, and for the first time, formulates the so-called “active duty to monitor.”

“The active monitoring duties of the providers are now clearly, concretely, and predictably defined with this decision,” emphasizes Götz Schneider-Rothhaar, partner at SKW Schwarz, who represented Dr. Eckart von Hirschhausen together with counsel Fabian Bauer in the case. The OLG made it clear in its decision that the monitoring obligations imposed on the service provider are reasonable and that the provider is technically capable of implementing this monitoring. The court further noted that the service provider breaches its duty if it does not immediately, upon becoming aware of a concrete infringement, fulfill its obligation to identify all identical and essentially similar videos on its platform.

“This decision is a fantastic milestone and breakthrough, and it will most likely have far-reaching consequences for many celebrities and other rights holders across all creative industries,” says Götz Schneider-Rothhaar. “If a service provider is informed in the future about a deep fake or other potential infringements, they can be warned not only at cost for semantically identical content that they have not proactively deleted from their platform, but the affected parties can also directly sue, claim damages, and, if necessary, even seek compensation.”

According to Götz Schneider-Rothhaar, platforms will have to react. “Because there are significantly more opportunities to hold service providers accountable for infringements in a more concrete manner than before.”

The decision issued in the expedited proceedings is not subject to appeal.

Higher Regional Court of Frankfurt am Main, Decision of March 4, 2025, Case No. 16 W 10/25
(preceded by the Frankfurt am Main Regional Court decision of November 29, 2024, Case No. 2-03 O 393/24)