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A website accidentally put online must have an imprint

The Regional Court Essen decided that a website accidentally put online must have an imprint; including contact details (LG Essen, ruling from November 13, .2014, reference number 4 O 97/14).

The plaintiff and the defendant let holiday apartments. The defendant in 2007 accidentally put a website online, in order to let her holiday apartments. The website was not complete: parts of the text were incomplete or missing. Some of the photos were put online in a wrong way. In 2014 the descriptions of the apartments were outdated. There was on the website only a reference to the defendant's family. There was no imprint with all details on the website. In March 2014 the plaintiff gave the defendant a written warning because of the incorrect imprint and asked her to give a cease-and-desist declaration with penal notice as well as to pay the warning costs. The plaintiff accused the defendant to violate the competition law with a website without a complete imprint. The defendant canceled the website, but she did not issue a cease-and-desist declaration nor did she pay the warning costs. According to her, the website was quite obviously incomplete and thus not could not be used on commercial purpose.

The Regional Court Essen imposed an injunction on the defendant and sentenced her to pay the warning costs because of her anti-competitive behaviour pursuant to article § 4 number 11 UWG (German Fair Trade Practices Act). The one who does not respect the market conduct rules is guilty of an anti-competitive behaviour. The entrepreneur who does not respect the rules gains an advantage over the other competitors whose behaviour is rule-consistent. The obligation to provide an imprint pursuant to article § 5 TMG is one of these market conduct rules, because the consumers thus have the possibility to assert their rights against the entrepreneur. The defendant violated the article § 5 TMG because she operated a website with an incomplete imprint.

The anti-competitive act is to be excluded, as argued by the defendant, because the present case is a case of minor breach arising out of negligence.  In accordance to article § 3 paragraph 2 UWG only those acts are anti-competitive that have an impact on the market. However any violation against market conduct rules pursuant to article § 4 number 11 UWG is significant because they are violations of the behavioral norms. Based on the intent and purpose of article § 4 number 11 UWG violations against market conduct rules are anti-competitive even if they do not impact on the market. The fact that the defendant put an incomplete website online is a violation against the market conduct rules pursuant to article § 5 TMG and therefore anti-competitive whether the website is used for publicity purposes or not.

To read the whole text of the ruling click here.
[Update May 6, 2015]:

The Regional Court Düsseldorf and the Regional Court Aschaffenburg dealt with the argument.

The Regional Court Düsseldorf ruled on one case related to a webpage under construction where the defendant pointed out that interested parties could get in contact with him  by email or phone.(LG Düsseldorf, ruling from December 15, 2010, reference number 12 O 312/10 - complete text). The Regional Court decided that there is no business activity and therefore there is no obligation to have an imprint.

The Regional Court Aschaffenburg ruled on another case. The defendant put the following reference on a webpage under construction: "We are developing our internet presence" (LG Aschaffenburg, ruling from March 4, 2012, reference number 2 HK O 14/12 - complete text). The defendant distributes an advertising magazine that is available on the webpage for download. The Regional Court decided that there is in fact a business activity because the defendant made his magazine public. For this reason the defendant was obliged to have an imprint on his webpage.