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Case Details

Case Details
National ID I ZR 228/03
Member State Germany
Common Name link
Decision type Other
Decision date 20/07/2006
Court BGH (Supreme court)
Subject
Plaintiff
Defendant
Keywords

Distance Selling Directive, Article 4, 2.

The identification of a web site operator which is accessible via two subsequent links (here: „contact“ and „imprint“) can fulfil the requirements for “readily identifiable” and “directly acces-sible” under § 6 TDG (Teledienstegesetz – Teleservices Act) and § 10(2) MDStV (Mediendi-enstestaatsvertrag – Interstate treaty on telecommunication services)
To fulfil the requirements set out in § 312c(1)(1) BGB for the mandatory information under § 1(1) BGB-InfoV (Verordnung über die Informationspflichten nach Bürgerlichem Recht - Ordi-nance on Information Duties under Civil Law) being provided in an unambiguous and easily un-derstandable way on the internet, it is neither necessary that this information is prompted on the welcome page nor does it have to be accessed inevitably during the process of ordering.
The defendant GmbH operated a web presence. Under the category “service for readers” the company inter alia offered magazines, books and newsletters, which could be ordered over the internet. The company name, the companies representatives, the entry into the commercial register and the address were neither stated on the homepage nor in the order form. This information could be obtained by the user, if he clicked on the button “contact” on the left navigation bar and then clicked “imprint” on the now appearing page. The plaintiff, the Centre for the Fight against Unfair Competition, has claimed that the accessibility of the information about the web site operator did not match the legal prerequisites. The plaintiff applied for a court order prohibiting the defendant from offering magazines and books over its web presence as long as the information about the web site operator is only accessible in the aforementioned way. The action was successful before the Regional Court, but was dismissed by the appellate court.
The Federal Court has rejected the appeal based on a point of law against the ruling of the appellate court. The court held that the provided identification neither constituted an infringement of § 6 S.1 TDG (Teledienstegesetz –Teleservices Act) respectively § 10(2)(1) MDStV (Mediendienste-Staatsvertrag - interstate treaty on media services) nor a contravention against the parameters set by § 312c(1)(1) BGB in conjunction with § 1(1) BGB-InfoV (Ordinance on Information duties under Civil Law). The plaintiff therefore could not obtain injunctive relief according to § 2(1), (2) no. 1 resp. no. 2 or § 8(1)(1), §§ 3, 4 no. 11 UWG (Law on Unfair Competition).

Although an infringement of § 6 S.1 TDG or § 10(2)(1) MDStV could be qualified as unfair competition as per §§ 3, 4 no. 11 UWG, the provided information about the web site operator in question here did match the criteria set by the principle of transparency in § 6 sent. 1 TDG resp. § 10 (2)(1) MDStV, that is: The information must inter alia be easily spottable and directly accessible. The appellate court had established that the informed average internet user knew that the words “contact” and “imprint” named links, through which the operator identification could be accessed. Therefore this information could be deemed “easily accessible”. The fact that on some web sites the link “contact” did only lead to an e-mail-form meant to establish contact, was no obstacle to this outcome, because on the web site in question here the aforementioned link was the only possible way to access the desired information. Moreover was the operator identification also directly accessible, that is, it could be accessed without any considerable intermediate steps and without the need to search for it for a long time. It was held to be innocuous that the information could only be accessed in two steps via two subsequent links.
The court also held that the web presence did not constitute an infringement of the distance sale provision § 312c(1) BGB, because the necessary information was – in a manner adequate to the peculiarities of the internet - provided to the consumer in an “unambiguous and easily understandable way” (cf. § 312(1)(1) BGB). The provision did not require the information to be necessarily prompted on the welcome page or the order form, nor did it have to be accessed inevitably during the process of ordering.
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