Everyone who has a commercial website, a webshop or advertises in the social web should deal with the requirements for the imprint obligation. Even the smallest of imprint errors can be subject to a costly warning from competitors and competition associations. Besides threaten with renewed offences against the imprint obligation sensitive contract punishments.
With following answers we want to answer frequently asked questions to the imprint shortly. However, these answers do not replace legal advice in individual cases.
When must an imprint be held?
According to § 5 of the German Telemedia Act (TMG), the imprint obligation applies to service providers who provide their own or third-party telemedia for use on a business basis or provide access to use. Accordingly, the imprint obligation for providers of business
- Online portals
- Social media profiles.
It should be noted here that the imprint obligation also applies to websites without a direct ordering option (according to OLG Dusseldorf). The imprint obligation may also apply to websites that have not yet been completed ("under-construction websites"). already take effect. Thus the LG Aschaffenburg affirmed z.B. the imprint obligation for a web page, on which the reference "here develops shortly our Internet operational readiness level" is, However, a logo was already present on the website and a print edition was available for download (Aschaffenburg Regional Court, judgment of 03 March 2009).04.2012 – Az.: 2 HK O 14/12). On the other hand, the imprint obligation does not (yet) apply to purely construction site pages (according to Dusseldorf Regional Court, judgment of 15.12.2010, Az.: 12 O 312/10). Finally, the imprint obligation also applies to "forgotten" websites or "outdated" Websites (Essen Regional Court, judgment of 13.11.2014, Az.: 4 O 97/14).
What information must be included in an imprint?
Which information is required in an imprint is regulated in § 5 of the German Telemedia Act (TMG). Accordingly, the following information must be included in the imprint:
1. Name and address of the service provider
– Name: at least one full first name and the last name
– Address: street, house number, postal code and city (post office box is not sufficient!)
– in the case of legal entities, the registered office of the company must be stated
– In the case of legal entities, the following information must also be provided
– Details of the legal form (z.B. AG, GmbH, UG, GbR)
– if information on the capital is provided: Capital stock or share capital
– if not all deposits to be paid in money are paid in, total amount of outstanding deposits
2. Information for quick contact
– E-mail address (mandatory)
– Fax number (if available)
– Telephone number* (not mandatory, if contact form is available)
The law requires that you must provide at least an email address and a second means of rapid electronic contact (telephone number or fax number).
* The ECJ ruled in 2008 that a telephone number does not have to be stated in the imprint if the service provider offers a further communication option in addition to the e-mail address. As such, an additional inquiry mask is sufficient, provided that the inquiries are answered within up to 60 minutes. However, if the user no longer has access to the Internet after the initial online contact, the service provider must, at the user’s request, offer a communication channel that enables offline contact to be established. Therefore, a telephone number should generally be indicated in the imprint. Hereby one is not only on the safe side, but signals also outward respectability.
3. Information on the supervisory authority
If the service is offered or provided as part of an activity that requires regulatory approval (z.B. broker, security and locking company, doctor, restaurant), you must also indicate in the imprint the supervisory authority responsible for you (name and full address). To be on the safe side, you should also provide a link to the website of the supervisory authority.
4. Register and register number
In the case of entries in the commercial register, register of associations, register of partnerships, register of cooperatives, place of the register and register number (z.B. Berlin Local Court, HRB 4567)
5. Sales tax or. Business identification number
If the service provider has a VAT identification number (USt-IdNr.) according to § 27 a of the Value Added Tax Act or a business identification number (W-IdNr.) according to § 139 a of the tax code, he must indicate this in the imprint. These numbers should not be confused with the normal tax number.
Although one often sees this in the imprint, neither the normal tax number nor a bank account nor the responsible tax office must be indicated in the imprint. This should be avoided as far as possible – in order to avoid the risk of abuse.
6. Profession-specific information
In the case of freelancers whose professional practice and title are specially regulated, the following information must be provided in the imprint:
– the chamber to which they belong (z.B. Chamber of Tax Advisors)
– the legal professional title and the state in which the professional title was awarded
– the relevant professional regulations and how they can be accessed (e.g.B. via a link to the chamber’s website)
If the service provider has taken out professional liability insurance, he must also provide information about this in the imprint. In doing so, he must state the name and address of the insurance company and the territorial scope of the insurance cover.
7. Special information for AGs, KGaAs and GmbHs
If an AG, KGaA or GmbH is in liquidation or winding up, this must be indicated (so-called "liquidation"). liquidation notice).
8. Journalistic-editorially designed offers
If a service provider not only maintains a commercial online presence, but also designs it in a journalistic-editorial manner, the imprint must contain the following information in accordance with. § 55 Abs. 2 RStV, the person responsible for the content must be named. This person must be permanently resident in Germany, have full legal capacity and be able to be prosecuted under criminal law without restrictions. As designation the following data can be used: "responsible in the sense of the press law", "V.i.S.d.P." or "Responsible for the content according to § 55 para. 2 RStV".
"Journalistic-editorial" are designed offers that want to contribute to the formation of public opinion. This is the case with regular publication of new articles, contributions and comments, z.B. in blogs, on Facebook pages or on Twitter.
Do the authorized representatives of a company have to be named in the imprint??
Although § 5 TMG provides for such an obligation. However, Art. 5 para. 1 of the E-Commerce Directive does not provide for such an obligation, therefore § 5 TMG is in this respect contrary to European law (KG Berlin, decision of 21.09.2012, Az. 5 W 204/12; OLG Dusseldorf, judgment of 18.06.2013, Az. I-20 U 145/12). The name of the authorized representative of a company can therefore be omitted from the imprint.
design and position of the imprint
According to § 5 TMG, an imprint must be "easily recognizable, directly accessible and permanently available" be. What do these three requirements mean ?
Easy recognizability of the imprint
The imprint is easily recognizable if the user can find it without a long search on the website. It has proven practical to provide a link from each website to the subpage "Imprint" to set. The link should thereby with "provider details" (this is the legal term for an imprint in § 5 TMG) "Imprint" or "Contact be labeled. These statements are recognized by case law. Information such as "About us or "Info are not sufficient, because the user does not expect to find information about the imprint. Likewise, it is not sufficient to provide imprint information in GTCs.
Important: An imprint must be provided both in the browser and in mobile apps of the respective websites (own websites, third-party platforms such as z.B. eBay or Facebook) be easily recognizable (OLG Hamm, judgment of 20.05.2010, Az.: I-4 225/09).
Immediate accessibility of the imprint
According to the case law of the Federal Court of Justice (BGH), the imprint is directly accessible if a user can reach the imprint from any offer page. This also applies to the accessibility of an imprint on Twitter, Facebook or blog pages. Here, too, it must be ensured that it is possible to access the website from any profile page (e.g.B. (e.g., on a Facebook or Google+ pinboard) can be reached with just two clicks. If three clicks and more are required, this is a violation of § 5 TMG, which can be warned and – as practice shows – is also warned by competitors.
Permanent availability of the imprint
Constant availability implies that a user must be able to access the imprint information at any time, if business-related content is offered. Pure construction site websites (temporarily) do not require an imprint. Short downtimes due to maintenance work or revisions of the imprint are harmless and therefore do not provide grounds for warning letters.
Does the imprint obligation also apply to foreign websites??
Basically, according to § 3 para. 1 Telemedia Act (TMG) the so-called. Country of origin principle. This means that foreign companies grds. are not subject to the German Telemedia Act and therefore do not have to adhere to the German imprint requirement under § 5 TMG.
The situation is different, however, if the foreign company has a German branch office or if it (also) directly addresses German customers with its websites. Thus, the Berlin Court of Appeals has ruled in its decision of 08.04.2016 (Az. 5 U 156/14) ruled that a foreign company operating in Germany (US company), which operates a website in German, must provide the mandatory disclosures under Section 5 TMG:
"The international jurisdiction of German courts for the action against the defendant located in California results indirectly from the provisions for local jurisdiction (. ). Accordingly, the place of the offense is (also) located in Germany, because according to the plaintiff’s assertion, the advertising complained of is directed at the domestic public (. ).
The injunctive relief is to be judged according to the respective market place law. The decisive factor is the location of the competitive conflict of interest. In the case of an advertising measure, the decisive factor is the market to which the measure is directed (..). In the case in dispute, this is (also) the German market, because the Internet presence in dispute (. ) already linguistically, but also in terms of content, unquestionably aligned."
In addition, European providers are also required to provide an imprint because the imprint obligation is derived from Art. 5 paragraphs. 1 of the E-Commerce-Directive to be implemented throughout Europe.
Therefore, the registered office of the German subsidiary should be specified as the registered office. If no such registered office exists, but the company’s activities are nevertheless conducted predominantly from Germany, this actual registered office must be indicated.
According to case law, the foreign company in this case must also provide information about which law it is subject to and how the representation relationships are structured. Foreign providers must therefore also state the foreign register and the register number. Here the foreign offerer should write out its legal form, so that the German user understands these.
Does the imprint obligation only apply to websites and online shops?
No. Contrary to what some entrepreneurs may think, imprint information must also be included on flyers, in brochures and catalogs, and other advertising materials. According to case law, at least the identity, legal form and address of the provider must be disclosed. A reference to the provider’s website is not sufficient, even if a complete imprint is listed there (OLG Hamm, decision of 13.10.2011, Az. I-4 W 84/11).
Does the imprint obligation also apply to Facebook, Twitter and other social media platforms??
Yes, if the social media presence in question is an independent "telemedia service" that is separate from the rest of the platform acts offered by the profile owner and used for professional or business purposes.
A social media presence therefore requires an imprint if it is recognizable within the platform or social media network (Twitter, Facebook, blog) as an independent, content-defined and independently managed area. It is therefore not sufficient for the platform operator to provide an imprint itself. The purpose of the obligation to provide an imprint is to be able to make fast and uncomplicated claims against the person actually responsible in the event of a legal infringement.
Only social media sites that are not directed at the general public and do not serve any professional or business activity are therefore exempt from the imprint obligation. This includes z.B. a Facebook profile that can only be accessed by friends, family and colleagues, or a Twitter account that is only used to communicate with friends, acquaintances and, on a private level, with colleagues. If the accounts are used for both private and business purposes, they are also subject to the imprint obligation.
The Regional Court of Aschaffenburg has already ruled in its judgment of 19.08.2011 (2 HK O 54/11) ruled that a Facebook account used for marketing purposes must contain the imprint information required under Section 5 TMG. The OLG Dusseldorf also ruled in its decision of 13.08.2013 (Az.: I-20 U 75/13).
important: Here, too, the mandatory information must be easily and effectively visually perceptible and findable without a long search. A link to the imprint of one’s own website by an account marked with "Info" marked link is also not sufficient here.
In addition, it must be noted that Facebook can also be accessed on mobile devices via various apps. It must also be ensured that the imprint requirements are complied with when the website is accessed via apps.
Since Google+ profiles are structured similarly to Facebook profiles, the imprint obligation also applies to them. Thus z.B. confirmed by the Regional Court of Berlin in its decision of 28.03.2013 (Az.: 16 O 154/13).
Since Twitter profiles are now also designed in a similar way to Facebook and Google+ profiles (header image, profile image, tweets, image album, possibility to contact the profile owner directly via direct message), the imprint obligation should also apply to Twitter profiles.
The Regional Court of Stuttgart has in its judgment of 27.06.2014 (Az.11 O 51/14) an imprint obligation is also affirmed for XING.
Also for business-like personalized Youtube channels the imprint duty applies.
The Higher Regional Court of Hamm has already ruled in its judgment of 20.05.2010 (I-4 U 225/09) decided that the imprint obligation also applies to mobile apps.
Does the imprint obligation also apply to private websites??
It depends. If the websites are used exclusively non-commercially, the imprint obligation does not apply. If, however, a commercial purpose is pursued with the websites, the imprint obligation also applies to private website operators.
A commercial purpose exists if the websites are designed commercially, although an offer of a service for which a fee is charged is not necessarily required for this purpose. A commercial design is z.B. already exists if the operator of the websites places advertising banners or ads or sets links, and generates income from this – regardless of how high these are.
Does the imprint necessarily have to include a telephone number?
No. The European Court of Justice (ECJ) did so in a landmark ruling of 16.10.2008 (Az.: C-298/07) decided. According to this, the specification of a telephone number in the imprint is not required. However, in addition to the e-mail address, the website operator must also provide another quick means of contact, z.B. in the form of a contact form.
According to a ruling by the Bamberg Regional Court of 23.11.2012 (Az.1 HK O 29/12), the website operator who does not specify a telephone number in the imprint must ensure that he can be reached via the other contact options within 60 minutes.
May a value-added services telephone number be indicated in the imprint?
Chargeable value-added numbers should only be used in the imprint if, in addition to the e-mail address (and the value-added number), another quick way of contacting you is offered (e.g., if you want to be informed as soon as an article is published).B. fax number or contact form).
If only an e-mail address and a chargeable value-added number are offered, case law sees this as a violation of the imprint requirements under § 5 TMG. Thus z.B. represented by the Regional Court of Frankfurt a.M. in its judgement of 02.10.2014 (Az. 6 U 219/13). In the case there was in the imprint an E-Mail address and a increase in value number (0.49 EUR/minute from the fixed net and/or. 2.99 EUR from the mobile network) is stated. A contact form was not available. The court classified this as a violation of the imprint obligations. Reason: In addition to the e-mail address, another faster contact option must be offered as a matter of principle. However, it is not sufficient to provide a value-added services telephone number for this purpose.
What are the consequences of an imprint violation?
A faulty imprint is probably still relatively far up in the Abmahn hit list. Since, according to case law, an incorrect imprint also constitutes a violation of competition law, not only competition associations but also competitors can issue a warning for a violation of imprint law. In this case, you must not only submit a cease-and-desist declaration with a penalty clause to the competitor issuing the warning, but also reimburse the competitor’s lawyer’s warning costs. If you violate the obligations assumed in the cease-and-desist declaration, the competitor can also demand payment of a contractual penalty from you, which, depending on the scope of the violation, can also amount to several thousand EUR. In addition, an imprint violation is punishable by a fine up to 50.000 EUR proven.
It is therefore worthwhile to maintain a warning-proof imprint on websites and social media profiles used for business purposes and on store pages.
Do you have questions about the imprint?
I advise numerous clients on the legal protection of their company presences. If you also want to protect yourself from warnings because of imprint violations and insofar want a consultation, please contact me.