OLG court ruling: German BSI was allowed to warn against Kaspersky antivirus software

Paragraph[German]On April 28, 2022, the Higher Administrative Court in Münster dismissed the appeal by the German-based branch of the company from the Russian Kaspersky Group against the BSI's warning, not to use Kaspersky Antivirus. This upheld a former ruling by the Cologne Regional Court. The latter had approved that the BSI (Bundesamt für Sicherheit in der Informationstechnik, Federal Office for Information Security) was allowed to warn against Kaspersky's antivirus software.


The background

In view of the Russian invasion of Ukraine and the ongoing hostilities, the question of whether software from Russian companies should be used in Germany – especially in the area of computer security – was also raised. After assessing the situation, the Federal Office for Information Security (BSI) issued a warning on March 15, 2022, against the use of antivirus software from the Russian manufacturer Kaspersky. The BSI recommended replacing applications from Kaspersky's portfolio of antivirus software with alternative products. I had addressed this in the blog post German Cyber Guard BSI warns now against the use of Kaspersky antivirus products. The bottom line is that this is a political decision, but one that has been justified.

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A German-based company of the Russian Kaspersky Group (which would have to be Kaspersky Labs GmbH in Ingolstadt) had applied to the Administrative Court in Cologne on March 21, 2022 for a temporary injunction to stop and revoke the BSI warning. However, on Friday, April 1, 2022, the judges of the Administrative Court in Cologne rejected this urgent application (Ref.: 1 L 466/22). An appeal was allowed against this decision.

Kaspersky appeals to the Higher Regional Court

However, an appeal was allowed against this decision (dated April 1, 2022, file no. 1 L 466/22). The German branch of Kaspersky then filed this appeal with the Higher Regional Court (Oberlandesgericht, OVG) in Münster. The 4th Senate of the OVG dismissed Kaspersky's appeal in the decision announced on April 28, 2022. The judges rejected the appeal filed by Kaspersky's German subsidiary against the urgent decision of the Cologne Administrative Court dated April 1, 2022. The 4th Senate ruled that the warning of the Federal Office for Information Security (BSI) against the use of antivirus software of the company Kaspersky is lawful and reasoned so, according to this news release (German, I've translated it to English):

The BSI made the decision to issue the warning without any error of judgment and, in particular, respected the principle of proportionality. The warning was not issued on the basis of extraneous considerations or even arbitrarily.

In particular, it was not politically motivated and does not represent pure symbolic politics. In view of the threat situation identified, its sole purpose was to reduce the risk of possible attacks on information technology security. It was suitable and necessary for this purpose.

With the warning, the BSI is significantly raising awareness of potential dangers that currently arise from the use of Kaspersky's anti-virus programs and recommends replacement with alternative products after individual risk assessment. At the same time, it has formulated the warning in compliance with the restraint requirement and limited it to what is necessary.

The decision (filed under: 4 B 473/22) is final.


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