Do you use a disclaimer? Are you looking for a disclaimer generator? Are you looking for a sample disclaimer? Search no further, but delete Your disclaimer sample best right now. Find out here why. For those in a hurry: jump straight to question IX!
II. What is a disclaimer?
Disclaimer is obviously an English word. The word "disclaim" originally means "to reject", "to dispute". According to the Cambridge Dictionary, the noun derived from disclaim means disclaimer:
"a formal statement saying that you are not legally responsible for something, such as the information given in a book or on the internet, or that you have no direct involvement in it"
The disclaimer is thus a kind of custody. I give information and nevertheless exclude the liability for it. Especially on the internet it has become common as an attempt to Limitation of liability for the website, especially the liability for links.
III. What types of disclaimers are there?
Primarily, disclaimers are thus texts on the limitation of liability. But there are also texts about the copyright of contents on the website, which are in the disclaimer or samples, with which it is tried to prevent warning letters. We will look at such patterns in more detail at the end.
IV. What are examples of such disclaimers?
A sample disclaimer can be found accordingly on many German websites.
Common patterns for such disclaimers are z.B.:
"For all links on this homepage applies: I dissociate myself hereby expressly from all contents of all linked sides on my homepage and do not make these contents too own"
or another typical sample for liability limitations:
"The contents of the website are created with the utmost care. Nevertheless, no guarantee can be given for topicality and completeness."
Check like your limitation of liability. Do you use a regulation that tries to regulate the liability for links?
V. Where do disclaimers come from?
Such model limitations of liability have become common following a judgement of the LG Hamburg from 1998. No one knows why this is so. The district court of Hamburg had only decided that you cannot exclude the liability for links by distancing yourself from the links in general. From this someone must have concluded that one needs a special safeguard against the contents of links. This is how the first samples came to Germany and have apparently spread rapidly. Today there are even many offers for sample disclaimers or even disclaimer generators.
Such limitations of liability are more likely to come from English or American law. A disclaimer is also claimed to be indispensable for English websites (also by lawyers):
According to Anglo-American law, this may be at least partially more correct, because there the legal liability is regulated very analogously to the contractual liability. However, this does not apply to German law in any case!
In any case, such disclaimers are now widespread. Almost everyone uses disclaimer samples or disclaimer generators or searches for such texts to secure their own website. If one could conclude from the spread of disclaimers that they are necessary, one would certainly have to use one – but the spread of alcohol does not make it healthy either.
Nevertheless, this is definitely wrong, at least for German law! Whether it is just an invention of lawyers to be able to sell services is hard to say. Nevertheless: you don’t need a limitation of liability, on the contrary: they are dangerous and can often be warned off. This is shown by the following judgments.
VI. Where to find disclaimers?
Such liability limitations can be found mainly in the imprint of websites. Disclaimer generators also often put it in the imprint. Some use even as for the data protection explanation a separately linked web page. Either way, it does not make sense. This means that the limitation of liability cannot even become effective, see to question VIII.
We also have our own data protection generator including imprint creation,
but of course no generator for liability limitations.
VII. How does a disclaimer work?
How does a disclaimer work? Very legitimate question! And the answer is no effect! At least not if it is a disclaimer from the group of limitations of liability. Then it never works. No, never!
VIII. Are disclaimers GTC?
At first glance, a connection with general terms and conditions seems to be obvious. Everyone knows probably AGB, in which a limitation of liability is found.
In fact the comparison is wrong. First of all AGB require a contract. They are general terms and conditions that are included in a contract. However, no contract is concluded with the user of a website, at least not by the mere fact that the website is called up.
Accordingly, T&Cs in a disclaimer sample or from a disclaimer generator would also not be included. The inclusion of GTCs namely requires a prior reference to the GTCs and an opportunity to reasonably take note of the GTCs. Only a reference to a limitation of liability in the imprint is not a hint to every visitor of the website. So if you are serious, you would have to use the limitation of liability similar to a cookie opt in. Then one would have to refer the user immediately with call largely to the Disclaimer and link this. This has been decided by the OLG Munich (Urt. v. 17.05.2002, Az.21 U 5569/01) already decided.
Since no one does this, a limitation of liability would not be effective even if it were to regulate something effectively at all. Nevertheless, the use of the disclaimer as a kind of GTC leads to the fact that the GTC law with its strict controls is applicable. But you do not need it. They are already ineffective according to general legal principles.
IX. Why does a disclaimer not work?
But why is a disclaimer ineffective now? The answer is, because the liability for links, the liability for the content of websites, is not a contractual, but a legal liability. The legal regulations can be found in §§ 7ff. Telemedia Act (TMG) or also §§ 823 ff., 1004 of the Civil Code (BGB).
Quite easily, the lack of effect can be explained with an equation. Liability in road traffic, for example, is also a legal liability. Here you can also not agree on a limitation of liability. So that would be like trying to write on your bumper:
"I always pay attention and use all my senses when parking. I always read the latest parking regulations. If I damage your car while parking, I am not liable, if I was in a hurry, if a resident distracted me or if the damage is under 1.000 Euro lies".
X. Is a limitation of liability on the website effective?
If it is a disclaimer regulating liability for content on the website, it is only effective if it correctly reflects the entire legal liability!
Since you cannot limit the legal liability and also the dsiclaimer as a general terms and conditions has not been included in a contract at all, is Any deviation from the legal regulation ineffective.
A regulation of the liability is thus effective only if the legal regulation is repeated one to one correctly. But this is very difficult. In addition to the legal regulations, there are always court decisions on the interpretation of these laws. These would also all have to be reproduced correctly. But these are hundreds of decisions, all the more so if, in addition to §§ 7ff. TMG also §§ 823ff. BGB takes into consideration.
At best case you can include in a disclaimer the legal regulation of the copyright law repeat. Then your disclaimer is effective. But this obviously brings you nothing. In worse case is the disclaimer but ineffective or will in any case be invalid in the future, because legal regulations can also change.
XI. Can a false disclaimer get you flagged down?
If your limitation of liability is a deviation from the legal principles of liability, you are deceiving the visitor of the website about the scope of your liability. That is an ineffective AGB, an ineffective limitation of liability. However, the use of ineffective regulation is in turn warnable.
Accordingly is about the clause:
"The contents of the website are created with the utmost care. Nevertheless, no guarantee can be given for topicality and completeness."
also by the Hamburg Higher Regional Court in 2012 (decision of 10.12.2012, Az.5 W 118/12) has been declared invalid. The court also affirmed a warning of this clause because of §§ 3, 4 no. 11, 8 para. 1, para. 3 no. 1 UWG. A similar clause was condemned by the Arnsberg Regional Court in 2015.
XII. Prevents a Disclaimer Abmahnungen?
Of course you cannot prevent with a Disclaimer also that one is warned off. In many cases, clauses are used that read in the shortest version:
"No warning without previous contact"
Or otherwise try to get the user to inform the website operator before issuing a warning notice.
However, according to the law against unfair competition, the warning is actually even intended as an advantage for the person being warned. The warning is in fact just the contact before the lawsuit. If the warning did not exist, the person issuing the warning would have to and could immediately sue for injunctive relief. § 12 Abs. 1 UWG expressly states:
"Those entitled to claim injunctive relief should warn the debtor before initiating legal proceedings and give him the opportunity to settle the dispute by issuing a cease-and-desist undertaking accompanied by an appropriate contractual penalty. As far as the warning is justified, the replacement of the necessary expenditures can be required."
Thus the first contact is grade the warning! If it is justified, according to § 12 para. 2 UWG to pay the costs (of the lawyer) for the warning. This legal regulation cannot be eliminated by the disclaimer. It is thus ineffective.