Creators of homepages and online shops are liable for all errors

Creators of homepages and online shops like to provide their clients with complete online shops and websites. Therefore, contracts for the creation of an online shop or internet presence often also include legal texts, images and photos, product descriptions and other texts.

Subsequently, photographs are often taken from other websites or from the existing "pool" without acquiring sufficient rights for the respective use of these photos. In some cases, product descriptions, brand logos, legal texts such as general terms and conditions (GTC) are also taken from other websites.

The internet presence or the online shop is then put into operation and a short time later the companies receive warnings about their own internet presence or their own online shop because of copyright and/or trademark infringements from the respective rights holders, as they use images and/or texts for which they do not own the rights.

Unfortunately, this case occurs more often than expected.

The same question then always arises. Was the creator of the website/online shop obliged to insert the images, texts, brand names and brand logos into the shop or onto the website?

The Regional Court of Bochum now had to decide on a case that was clear on this issue. In the case to be decided by the Regional Court of Bochum, a company had undertaken to create the internet presence of a lawyer. In doing so, the agency used photographs for which it had not acquired the corresponding rights. Consequently, the lawyer was not entitled to use the disputed photographs on his website. He was therefore sued for injunctive relief and damages by the rights holders of the photographs. The lawyer then filed a claim for damages against the company that had created his website for breach of duty.

In this case, the Regional Court of Bochum ruled that the company had breached its duty under the contract concluded with the lawyer for the creation of a homepage. Therefore, it was obliged to compensate the lawyer for the full damage.

The case to be decided by the Regional Court of Bochum should clarify for both clients and contractors that a contract for the creation of an online shop and/or an internet presence must clearly regulate which rights and obligations the respective contractual party has.

From the point of view of agencies and creators of online shops and websites, it can only be strongly recommended to only insert photographs in the websites for which the later user of the website also obtains the corresponding rights for the specific type of use. Therefore, no photographs should be inserted on websites and online shops where the creator of the website does not know whether and what rights he or she holds for these images. However, agencies often take existing images for which the rights situation is unclear in order to minimise costs, among other things.

This approach can only be strongly discouraged.

The same applies with regard to texts and product descriptions to be used. If an agency is contractually obliged to create texts for an internet presence and/or online shops, only its own texts should be used. If texts are purchased from copywriters, the corresponding rights of use must also be acquired here.

Clients of websites and online shops are also strongly advised to draw up the contract on the creation of the website or online shop in writing and to provide for clear regulations. It should be urgently clarified who provides the content for a website.

From a liability point of view, we also strongly advise creators of websites and online shops not to create legal texts and make them available to clients.

Please do not hesitate to contact us if you have any questions on these topics.

 

Source: Judgment of the Regional Court of Bochum dated 16.08.2016, file number: 9 S 17/16

 

Goldberg Attorneys at Law 2016

Lawyer Michael Ullrich, LL. M. (Information Law)

Specialist lawyer for information technology law (IT law)

E-mail: info@goldberg.de

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