Online portals are a way for many companies to increase their findability for customers. However, the advertising companies depend on the portal operators doing everything right. If this is not the case, there could be an infringement that could be subject to a warning, as the LG Düsseldorf found in a case.
Insurance intermediary = insurance broker?
The defendant is an insurance intermediary and booked an entry on an online portal. The defendant correctly submitted her data to the portal operator. Due to an error, the portal operator indicated the defendant's activity as an insurance broker.
According to section 59 (1) sentence 1 VVG, insurance intermediaries within the meaning of the VVG are insurance agents and insurance brokers. According to § 59 (1) sentence 3 VVG, insurance intermediaries can carry out a sales activity without being an insurance agent or insurance broker. The latter seems to have been the case with the defendant.
Why is the user liable for errors made by the portal operator?
According to the Düsseldorf Regional Court, the defendant was not an insurance broker. The information on the portal was therefore false and misleading.
The owner of a company is liable under Section 8(2) UWG if employees or agents of a company commit the infringements. The defendant commissioned the portal operator to publish information (advertising) about its company. It is irrelevant for liability under Section 8(2) UWG whether the agent or the owner of the company culpably committed the infringement.
What do you have to watch out for when advertising by third parties?
As you can see, you cannot escape your responsibility under competition law by using a service provider. You should note the following:
- Be sure to check the information you provide to the service provider. The information about your company must be complete and correct.
- You should ask your service provider to show you the draft publication before the information about your company is published. You should immediately reprimand any errors and ask for a revised draft of the publication. You should also check this again and, if necessary, reprimand again. You should repeat this procedure until the draft publication is correct.
- Check the information about your company immediately after it has been published. If you find any errors, you must make a verifiable request to your service provider to correct the published information. As a precaution, the information about your company should be blocked until it is corrected, so that the public cannot access the information. The request for correction should be made by telephone and at least one other channel, e.g. e-mail, fax. In the event of a dispute, this would allow you to document that you have made immediate efforts to correct the information.
- Claims for damages against your service provider are conceivable, but legally problematic. Warning costs and the costs of your own lawyer must generally be borne by you alone, because you are also responsible for the infringement according to Section 8 (2) UWG. The situation might be different if you had immediately requested your service provider to remedy the situation after the publication of erroneous information about your company and your service provider had not reacted or had not reacted in time.
In cases like this, do not act alone, but seek legal support. We will be happy to check any warnings for you and defend you against unjustified claims.
Source: LG Düsseldorf, judgement of 22.01.2021, ref. 38 O 68/20
We are happy to provide advice in the entire area of IT law and competition law.
GoldbergUllrich Lawyers 2021
Julius Oberste-Dommes LL.M. (Information Law)
Lawyer
Specialist lawyer for information technology law
