Following numerous court decisions, the Federal Court of Justice has now also addressed the question of where the legally required imprint must be located on a website. The decision of the Federal Court of Justice (judgment of July 20, 2006, file no: I ZR 228/03) has now resolved a long-standing dispute among various courts and numerous legal scholars regarding the necessary placement of an imprint on a website. It has now been definitively clarified by the highest court that it is sufficient for the imprint of a website to be accessible via two links.
In its judgment of november 19, 2003, the Munich Higher Regional Court, as a lower instance, already determined that a web imprint accessible via two steps, using the 'Contact' link and the subsequent 'Imprint' link, complies with legal requirements.
The Center for Combating Unfair Competition (Zentrale zur Bekämpfung unlauteren Wettbewerbs e. V.) had filed the lawsuit. It asserted claims for injunctive relief against a domain owner and argued that the provider identification on the domain owner's website did not meet legal requirements, as the website's imprint was only indirectly provided via the 'Contact' link and a further 'Imprint' link. The Competition Center was of the opinion that these two required steps constituted a violation of competition law because the provider identification was not directly accessible and easily recognizable due to the double linking. Initially, the Munich Regional Court upheld this view. However, the domain owner filed an appeal.
The Munich Higher Regional Court subsequently determined in its 2004 judgment that the provider identification of the defendant's website met the transparency requirements of § 6 sentence 1 TDG (Telemedia Services Act) and § 10 para. 2, sentence 1 MDStV (Interstate Treaty on Media Services).
According to these provisions, the necessary information must be easily recognizable, directly accessible, and continuously available.
According to the Munich Higher Regional Court, this was the case for the provider identification accessible via the 'Contact' link and the subsequent 'Imprint' link. In the context of telemedia and media services, the terms 'Contact' and 'Imprint' have become established practice to direct users to the provider's personal details. Average informed internet users understand these terms as an indication of the provider identification information. This information is also directly accessible, as no more than two steps are required to reach the provider identification details.
The Munich Higher Regional Court also denied claims for injunctive relief pursuant to § 1 para. 1, para. 2, sentence 1 UKlaG (Act on Injunctions) in conjunction with § 312 c para. 1, sentence 1, no. 1 BGB (German Civil Code) in conjunction with § 1 para. 1 BGB – InfoV (BGB Information Obligations Ordinance).
The Munich Higher Regional Court stated that the aforementioned provisions constituted consumer protection laws within the meaning of § 1 para. 1 and para. 2, no. 1 UKlaG, and that the defendant's online offering therefore had to comply with the transparency requirement of § 312 c para. 1, sentence 1 BGB. However, the judges did not consider the transparency requirement to be violated by a double link to the provider identification.
The judgment of the Munich Regional Court was therefore overturned by the Munich Higher Regional Court, whereupon the plaintiff filed an appeal with the Federal Court of Justice.
However, the Federal Court of Justice now affirmed the judgment of the Munich Higher Regional Court with its decision of July 20, 2006 (file no. I ZR 228/03).
The Federal Court of Justice reiterated that the purpose of the information obligations regarding identity, address, authorized representative, and commercial register entry is for the entrepreneur to clearly and unambiguously inform the consumer with whom they are entering into a business relationship.
The required information must therefore, among other things, be easily recognizable. If the necessary details are not on the homepage, the provider must choose designations for further links to this information that are understandable and readily apparent to the user. According to the Federal Court of Justice, the terms 'Contact' and 'Imprint' meet these requirements. The Federal Court of Justice thus also holds the view that the average informed internet user is now aware that the terms 'Contact' and 'Imprint' refer to links through which the user can access a webpage containing the provider identification details.
Furthermore, the Federal Court of Justice stated that the provider identification, accessible via a 'Contact' link and a further 'Imprint' link, is still considered directly accessible. Direct accessibility would not be precluded by the user reaching the required information in two steps rather than one. Accessing a website via two links typically does not require extensive searching, and therefore, direct accessibility within the meaning of the law can be assumed. While the presence of various links could impair direct accessibility if the user first had to make a selection among them or click multiple links because the links were not unambiguous, this was not the case here, which is why direct accessibility could be assumed.
The Federal Court of Justice also denied the asserted claims for injunctive relief pursuant to § 8 para. 1, sentence 1, §§ 3, 4 no. 11 UWG (Act Against Unfair Competition) in conjunction with § 312 c para. 1, sentence 1 BGB, § 1 para. 1 BGB – InfoV, and § 2, para. 1, para. 2, no. 1 UKlaG in conjunction with § 312 C para. 1, sentence 1 BGB, § 1 para. 1 BGB – InfoV.
Here too, the Federal Court of Justice determined that the retrievable information, provided to a consumer via a 'Contact' link and another link designated 'Imprint', is presented to the consumer clearly and understandably, in a manner appropriate for the telecommunication medium of the internet, within the meaning of § 312 c para. 1, sentence 1 BGB. From this perspective, it is also sufficient to provide the information required for provider identification on a website accessible via two links, as these procedures and the corresponding links are commonly known for retrieving such information.
The Federal Court of Justice has thus definitively ruled that the legal opinion consistently advocated by our firm for years is correct, namely that it is generally sufficient for a website's imprint to be accessible via two links.
Should you require legal advice on the aforementioned topic or other areas of intellectual property or IT law, Goldberg Attorneys-at-Law are at your disposal. You are also welcome to contact us via email at m.ullrich@goldberg.de or info@goldberg.de .
Attorney at Law Michael Ullrich, LL.M. (Information Law)
© Goldberg Attorneys Wuppertal - Solingen
