Network Blocking Orders for Gambling Do Not Apply to Providers Without Their Own Network Infrastructure

Telecommunications service providers without their own network infrastructure cannot be the addressees of gambling-related blocking orders for websites. This was decided by the Federal Administrative Court (BVerwG) on March 19, 2025 (Case No. 8 C 3.24), thereby setting limits on potential DNS blocking measures.

The plaintiff, reportedly a company from the United Internet Group according to heise.de, is a provider of telecommunications services. It does not operate its own network infrastructure but instead resells preliminary services provided by telecommunications network operators to its end customers as a so-called reseller. By an order dated October 13, 2022, the defendant, the Joint Gambling Authority of the Federal States, directed the plaintiff to block several websites operated under .com and .de domains within the scope of its technical capabilities, preventing access via the internet connections provided by the plaintiff in Germany. The same was to apply to future websites communicated by the defendant that offered or facilitated substantially identical illegal gambling services (so-called “mirror pages”). The defendant justified this by stating that the websites, operated from Malta, offered various gambling services, including “slot games” and lottery betting on various German and international lotteries. The blocking order was based on Section 9 (1) Sentence 3 No. 5 of the 2021 State Treaty on Gambling (GlüStV 2021). The gambling offers on these websites were deemed illegal because they lacked the permit required under Section 4 (1) Sentence 1 GlüStV 2021. The plaintiff, as an access provider, was considered a responsible service provider under Section 9 (1) Sentence 3 No. 5 GlüStV 2021. The defendant argued that responsibility was not determined by Sections 8 to 10 of the Telemedia Act (TMG) but by the provision itself. According to this, a service provider’s responsibility arises when measures against the organizers or intermediaries of the illegal gambling offers are, as in this case, neither feasible nor promising (secondary responsibility). In particular, the exclusion clause of Section 8 (1) TMG was deemed inapplicable, as it relates solely to civil liability. The plaintiff was free to choose the method of blocking the disputed websites, though a DNS block—i.e., blocking the address of the website to be restricted—was considered preferable.

The Administrative Court of Koblenz (judgment of May 10, 2023 – Case No. VG 2 K 1026/22) largely upheld the plaintiff’s claim. In the appeal proceedings before the Higher Administrative Court of Rhineland-Palatinate, the defendant was also unsuccessful (judgment of April 22, 2024 – Case No. OVG 6 A 10998/23), leading the Federal Administrative Court to address the dispute in a revision procedure due to its fundamental legal significance. However, the defendant’s efforts failed there as well. While the reasoning of the judgment is not yet available, according to the press release, the BVerwG concluded in its ruling of March 19, 2025 (Case No. BVerwG 8 C 3.24) that the Higher Administrative Court had correctly determined that the relevant authorization under Section 9 (1) Sentence 3 No. 5 GlüStV refers to the responsibility framework of Section 8 TMG. The repeal of the Telemedia Act—since May 14, 2024, the TMG is no longer in force—does not alter this, as the reference pertains to the version of Section 8 TMG in effect at the time the State Treaty on Gambling entered into force. According to Section 9 (1) Sentence 3 No. 5 GlüStV, blocking orders may explicitly only be directed at “service providers responsible under Sections 8 to 10 of the Telemedia Act”; for mere access providers, Section 8 TMG applies. The legislative history of the State Treaty on Gambling shows that the contracting states intended to rely on the graduated system of responsibility for different types of service providers as established in the Telemedia Act. The regulatory context does not suggest otherwise, and the purpose of the provision does not justify an interpretation contrary to its wording. Consequently, the plaintiff is not responsible. It neither initiates the transmission of the gambling content nor selects it or its recipients. There is also no collusive cooperation between the plaintiff and the operators of the websites.

According to the BVerwG, no other legal bases for issuing a blocking order are available due to the specific and exhaustive nature of Section 9 (1) Sentence 3 No. 5 GlüStV. This applies in particular to general regulatory powers for involving non-disruptors under Section 13 in conjunction with Section 10 (1) of the Saxony-Anhalt Act on Public Safety and Order. Furthermore, the defendant has uniform jurisdiction across all federal states for illegal public gambling offered online in more than one state.