After numerous courts, the Federal Supreme Court has now also dealt with the question of where the legally required imprint must be located on a website. The decision of the Federal Supreme Court (judgement of 20 July 2006, ref.: I ZR 228/03) has now put an end to a dispute among the various courts and numerous voices in the literature over the necessary placement of an imprint on a website that has lasted for years. It has now been clarified by the highest court that it is sufficient if the imprint of a website can be reached via two links.
In its judgement of 19 November 2003, the Munich Higher Regional Court (OLG), as the lower court, found that a web imprint which can be called up in two steps by means of the link "Contact" and the further link "Imprint" complies with the legal requirements.
The action was brought by the Zentrale zur Bekämpfung unlauteren Wettbewerbs e. V. (Central Office for Combating Unfair Competition). It asserted claims for injunctive relief against a domain owner and complained that the provider identification on the domain owner's website did not meet the legal requirements because the imprint of the website was only made available indirectly via the "Contact" link and via the additional "Imprint" link. The Wettbewerbszentrale took the view that these two necessary steps constituted a violation of competition law, as the provider identification was not directly accessible and not easily recognisable due to the double link. This opinion was initially upheld by the Munich Regional Court. However, the domain owner appealed.
The Munich Higher Regional Court then ruled in 2004 that the provider identification of the defendant's website met the transparency requirements of § 6 sentence 1 TDG (Teleservices Act) and § 10 para. 2, sentence 1 MDStV (Media Services State Treaty).
According to these regulations, the necessary information must be easily recognisable, immediately accessible and permanently available.
In the opinion of the OLG Munich, this was the case with the provider identification accessible via the link "Contact" and the further link "Imprint". In the case of telecommunication and media services, the terms "contact" and "imprint" had become generally accepted in order to refer the user to the provider's personal details. Averagely informed users of the internet understood these designations as a reference to the information on the provider's identification. This information was also directly accessible, as no more than two steps were necessary to reach the information on the provider's identification.
The OLG Munich also denied injunctive relief pursuant to § 1 para. 1, para. 2, sentence 1 UKlaG (Injunctions Act) in conjunction with § 312 c para. 1, sentence 1, no. 1 BGB in conjunction with § 1 para. 1 BGB - InfoV (BGB Information Duties Ordinance).
The OLG Munich stated that the aforementioned provisions were consumer protection laws within the meaning of § 1 para. 1 and para. 2, no. 1 UKlaG, and that the defendant's internet offer 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 judgement of the Munich Regional Court was therefore overturned by the Munich Higher Regional Court, whereupon the plaintiff appealed to the Federal Supreme Court.
However, in its judgement of 20 July 2006 (Case No. I ZR 228/03), the BGH now confirmed the judgement of the OLG Munich.
The BGH once again stated that the purpose of the information requirements on identity, address, authorised representative and entry in the commercial register is that the trader clearly and unambiguously informs the consumer with whom he enters into business contact.
The required information would therefore have to be easily recognisable, among other things. If the required information was not on the homepage, the provider would have to choose names for further links to this information that are comprehensible and easily understood by the user. According to the BGH, the terms "contact" and "imprint" meet these requirements. The Federal Supreme Court thus also takes the view that the averagely informed user of the internet is now aware that the terms "contact" and "imprint" designate links that take the user to an internet page with the information on the provider's identification.
Furthermore, the BGH stated that the provider identification, which was accessible via a link "Contact" and via the further link "Imprint", was also still directly accessible. Direct accessibility would not fail because the user did not reach the required information in one step, but only in two steps. Reaching an internet page via two links did not regularly require a long search and one could therefore assume direct accessibility within the meaning of the law. It was true that the inclusion of several links could impair direct accessibility if the user first had to make a choice between them or click on several links because the links were not clear. However, this was not the case here, which is why direct accessibility could be assumed.
The BGH also denied the asserted claims for injunctive relief pursuant to § 8 para. 1, sentence 1, §§ 3, 4 no. 11 UWG 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 BGH held that the retrievable information provided to a consumer via a "contact" link and another link designated as "imprint" is provided to the consumer in a clear and comprehensible manner within the meaning of Section 312 c (1), first sentence, of the German Civil Code (Bürgerliches Gesetzbuch - BGB) in a manner corresponding to the internet as a means of telecommunication. From this point of view, it was also sufficient to provide the information necessary to identify the provider on an Internet page that could be reached via two links, since these procedures and the corresponding links were known in the trade for retrieving the information.
The Federal Supreme Court (Bundesgerichtshof, BGH) has thus ruled that the legal opinion that our law firm has been advocating for years is correct, namely that it is generally sufficient if the imprint of a website can be accessed via two links.
If you would like legal advice on the above subject or on other subjects of intellectual property law or IT law, the Goldberg lawyers will be happy to assist you. You are also welcome to contact us by e-mail via the e-mail addresses m.ullrich@goldberg.de or info@goldberg.de .
Attorney at Law Michael Ullrich, LL.M. (Information Law)
© Goldberg Attorneys Wuppertal - Solingen
