Websitecheck Online-Module

You must publish a provider identification (imprint) on your web site. The imprint serves to identify and to get in touch with the provider of a website. Above all, consumers according to sec. 12 BGB shall be protected by this. Not only providers of company websites are obliged to publish an imprint, but often also other organizations and sometimes private persons, because "businesslike" purposes according to sec. 5 TMG are already pursued, if someone provides a teleservice sustainably. Making profit is not required. Already attaching an advertising banner on a private website can oblige to publish an imprint. Besides the positioning and the naming of the imprint, also to its contents has to be paid attention. Depending on legal form and business area of the website provider, very different, detailed information has to be given, e.g. name and address of the website provider, the phone number, e-mail address or an electronic contact form as well as further details substantiated by law or court decisions have to be given.

At present, you probably do not need a supplier identification (imprint) on your website. If you should, however, pursue businesslike purposes or an economic interest with your website in the future, this can become necessary. The imprint serves to identify and to get in touch with the provider of a website. Above all, consumers according to sec. 12 BGB shall be protected by this. Not only providers of company websites are obliged to publish an imprint, but often also other organizations and sometimes private persons, because "businesslike" purposes according to sec. 5 TMG are already pursued, if someone provides a teleservice sustainably. Making profit is not required. Already attaching an advertising banner on a private website can oblige to publish an imprint. Besides the positioning and the naming of the imprint, also to its contents has to be paid attention. Depending on legal form and business area of the website provider, very different, detailed information has to be given, e.g. name and address of the website provider, the phone number, e-mail address or an electronic contact form as well as further details substantiated by law or court decisions have to be given.

With e-commerce contracts for the delivery of goods or the provision of services according to sec. 312e BGB (use of tele- or media services), the company has to give certain information to its customers on the website, before the customer makes his contractual declaration. Amongst others, this is information about the technical order process / closing of the contract, the contractual regulations including the terms and conditions which must be accessible online and storable, an immediate order confirmation by e-mail, as well as further details substantiated by law or court decisions.

At present, you probably do not have to publish further information about e-commerce on your website. However, should you consider to offer an order functionality on your website in the future, as of then you have to take into account that with e-commerce contracts for the delivery of goods or the provision of services according to sec. 312e BGB (use of tele- or media services), the company has to give certain information to its customers on the website, before the customer makes his contractual declaration. Amongst others, this is information about the technical order process / closing of the contract, the contractual regulations including the terms and conditions which must be accessible online and storable, an immediate order confirmation by e-mail, as well as further details substantiated by law or court decisions.

As a commercial supplier of goods and/or services (also lease) over the internet, you have to consider the distance selling regulations of the sec. 312b et seq. BGB, with the exception of contracts on distance learning, insurance, travel, food/beverage or leisure activities. Everybody who performs an activity which is laid out for a certain duration, systematic, economic and independent already acts commercial or as a businessman according to sec. 14 BGB. Extensive information, primarily about the cancellation and return policy have to be announced on the web site prior to the contractual declaration and in addition have to be sent to the customer at latest until the fulfilment of the contract in text form (e.g. on paper, e-mail or fax). Amongst others, product information, information about the payment and delivery, the total price of the goods or services, the contractual regulations including the terms and conditions as well as further details substantiated by law or court decisions, are comprised. Certain information must be highlighted by colour, font size, spaced characters, bold type or the like from the rest of the text and be worded clearly. In particular, it has to be paid attention to the highlighting of the instructions on the cancellation and return policy, in order to include these effectively.

At present, you probably do not have to publish further distance selling information on your website. Should you, however, in the future sell goods and/or services on your website also to consumers, you will have to consider the distance selling regulations of the sec. 312b et seq. BGB, with the exception of contracts on distance learning, insurance, travel, food/beverage or leisure activities. Everybody who performs an activity which is laid out for a certain duration, systematic, economic and independent already acts commercial or as a businessman according to sec. 14 BGB. Extensive information, primarily about the cancellation and return policy have to be announced on the web site prior to the contractual declaration and in addition have to be sent to the customer at latest until the fulfilment of the contract in text form (e.g. on paper, e-mail or fax). Amongst others, product information, information about the payment and delivery, the total price of the goods or services, the contractual regulations including the terms and conditions as well as further details substantiated by law or court decisions, are comprised. Certain information must be highlighted by colour, font size, spaced characters, bold type or the like from the rest of the text and be worded clearly. In particular, it has to be paid attention to the highlighting of the instructions on the cancellation and return policy, in order to include these effectively.

In order to protect the customer, sec. 305 et seq. BGB stipulate, how terms and conditions have to become part of the contract with the consumer. It has to be particularly taken care for the effective inclusion in the contract, that the costumer can take note of the terms and conditions before he makes his contractual declaration. For the effective use of terms and conditions in links, checkboxes, text fields with scroll bars and in pop-up windows, several court judgements have to be taken into account as well.

If, in future, you should consider to use terms and conditions, you have to consider that in order to protect the customer, sec. 305 et seq. BGB stipulate, how terms and conditions have to become part of the contract with the consumer. It has to be particularly taken care for the effective inclusion in the contract, that the costumer can take note of the terms and conditions before he makes his contractual declaration. For the effective use of terms and conditions in links, checkboxes, text fields with scroll bars and in pop-up windows, several court judgements have to be taken into account as well.

Data protection is a right of the individual person established in the constitution to decide himself on surrender and use of his personal data. For example setting up a customer account, the use of cookies as well as (which is sometimes done automatically by host providers) storage of IP-addresses in server log files, belong to the data collection. Amongst others, it has to be taken into account which data of the website visitors is collected and where necessary his express consent has to be given. According to the TeleMediaAct (TMG) the website visitor has to be informed about collecting and processing of his personal data in a data protection policy declaration. In principle, personal data of the website visitors should only be collected, where it is necessary.

You probably do not have to adhere to any data protection regulations at present. However, take into account that personal data are all data which enable an identification of the user, not only his name, address, etc. Already storage of the IP- or email-address can make the data protection regulations applicable. Data protection is a right of the individual person established in the constitution to decide himself on surrender and use of his personal data. For example setting up a customer account, the use of cookies as well as (which is sometimes done automatically by host providers) storage of IP-addresses in server log files, belong to the data collection. Amongst others, it has to be taken into account which data of the website visitors is collected and where necessary his express consent has to be given. According to the TeleMediaAct (TMG) the website visitor has to be informed about collecting and processing of his personal data in a data protection policy declaration. In principle, personal data of the website visitors should only be collected, where it is necessary.

Already at the time of the creation of a work, e.g. with drawing a graphic or writing a text, it becomes protected by the copyright law. The author of a work exclusively has the right to use and to publish the work, as per sec. 11 and 12 of the German Copyright Act (UrhG). The copyright of other people on the contents published on a website has to be respected. Violations can cause considerable legal costs for written warnings and subsequent licence fees. The author is entitled to these rights by law, he does not have to reserve these. The legal position regarding the copyright has to be cleared previously, because one cannot plead having no knowledge of the other's copyright; there is rather an obligation to make sure that oneself holds all required copyrights. The adaptation right of sec 23 UrhG, according to which one mustn't simply edit e.g. a graphic or map, has to be respected unless the original work cannot be recognized any more after the adaptation.

If you intend to use other's content for your website in future, it has to be taken into account, that a already at the time of the creation of a work, e.g. with drawing a graphic or writing a text, it becomes protected by the copyright law. The author of a work exclusively has the right to use and to publish the work, as per sec. 11 and 12 of the German Copyright Act (UrhG). The copyright of other people on the contents published on a website has to be respected. Violations can cause considerable legal costs for written warnings and subsequent licence fees. The author is entitled to these rights by law, he does not have to reserve these. The legal position regarding the copyright has to be cleared previously, because one cannot plead having no knowledge of the other's copyright; there is rather an obligation to make sure that oneself holds all required copyrights. The adaptation right of sec 23 UrhG, according to which one mustn't simply edit e.g. a graphic or map, has to be respected unless the original work cannot be recognized any more after the adaptation.

Someone who publishes contents on the internet usually cannot forbid that third parties link onto his webpages. Although setting hyperlinks onto others' websites is therefore generally permitted, some criteria developed by the courts have to be taken into account in order to meet copyright, unfair competition and liability aspects already in advance. Otherwise, the provider of a website can become liable for hyperlinks onto external websites. Linking onto websites with illegal content is not permitted either.

If you intend to use links in future, you should keep in mind that someone who publishes contents on the internet usually cannot forbid that third parties link onto his webpages. Although setting hyperlinks onto others' websites is therefore generally permitted, some criteria developed by the courts have to be taken into account in order to meet copyright, unfair competition and liability aspects already in advance. Otherwise, the provider of a website can become liable for hyperlinks onto external websites. Linking onto websites with illegal content is not permitted either.

In principle, using of others' names/trademarks in domains, meta tag, AdWords etc. should be avoided unless either the owner has given his express consent or you sell the mentioned name-brand products. Only under certain requirements the use of others' marks is allowed. Violations of others' trademarks can cause expensive written warnings, temporary restraining orders and compensation claims.

You should avoid the use of others' names/trademarks in domains, meta tag, AdWords etc. also in the future, unless either the owner has given his express consent or you sell the mentioned name-brand products. Only under certain requirements the use of others' marks is allowed. Violations of others' trademarks can cause expensive written warnings, temporary restraining orders and compensation claims.

In principle, email newsletters may be sent only according to the express previous consent of the receiver. The German Federal Court of Justice (BGH) has developed detailed criteria for an effective declaration of consent, which have to be met. A simple registration functionality on the website is not sufficient, as well as there are special regulations for existing customers and the sending of email newsletters to a big group of recipients. Violations can cause expensive written warnings, temporary restraining orders and compensation claims.

If you plan to send email newsletters in the future, you should send them only according to the express previous consent of the receiver. The German Federal Court of Justice (BGH) has developed detailed criteria for an effective declaration of consent, which have to be met. A simple registration functionality on the website is not sufficient, as well as there are special regulations for existing customers and the sending of email newsletters to a big group of recipients. Violations can cause expensive written warnings, temporary restraining orders and compensation claims.

With affiliate programmes in particular the legal liability aspect has to be taken into account, which is judged by the courts inconsistently. It can happen, that an advertising partner (affiliate) provides additional content on his website (or in his domains) which infringes competition or trademark law and the injured party makes its claims against the advertised company (merchant) although that had no knowledge of the infringement and also has no possibility to access the affiliate's server. According to the judgements of some courts, the merchant is obliged to check whether his affiliate infringes third parties' rights. On the other hand, also the affiliate who publishes the advertising banners of a merchant on his website can be liable towards an injured third party for the advertising material provided by the merchant.

If you intend to provide an affiliate programme in the future or to take part in such, then in particular the legal liability aspect has to be taken into account, which is judged by the courts inconsistently. It can happen, that an advertising partner (affiliate) provides additional content on his website (or in his domains) which infringes competition or trademark law and the injured party makes its claims against the advertised company (merchant) although that had no knowledge of the infringement and also has no possibility to access the affiliate's server. According to the judgements of some courts, the merchant is obliged to check whether his affiliate infringes third parties' rights. On the other hand, also the affiliate who publishes the advertising banners of a merchant on his website can be liable towards an injured third party for the advertising material provided by the merchant.

Providers of an internet forum possibly are not responsible for the contents/comments of the users, if they make clear that it is content/comments of third parties. However, according to the judgements of some courts the forum provider is obliged to the check the contents of the forum. If the forum provider has knowledge of illegal content, the courts generally affirm a liability of the forum provider.

If you would like to provide a forum or guest book in the future, you should take into account the liability aspects and inspection duties. Providers of an internet forum possibly are not responsible for the contents/comments of the users, if they make clear that it is content/comments of third parties. However, according to the judgements of some courts the forum provider is obliged to the check the contents of the forum. If the forum provider has knowledge of illegal content, the courts generally affirm a liability of the forum provider.

Even if you already use a so called "disclaimer" on your website, you should check, whether it really meets the requirements. Liability for the published contents does not only comprise the legality of the contents (e.g. no third-party-rights are infringed) but also its correctness (e.g. repair instructions, medical information). It is therefore recommended to include a clause for the limitation of liability for own and other's content, however, it has to be paid attention to the wording, because a limitation/exclusion of liability will be legally valid only within a restricted scope. In particular general templates have to be used with caution (e.g. the one which says "With its judgement of 12. May 1998 the Hamburg County Court has ruled …).

One of the major topics when providing a website is the question, who, how and to which extent is liable for the content. Liability for the published contents does not only comprise the legality of the contents (e.g. no third-party-rights are infringed) but also its correctness (e.g. repair instructions, medical information). It is therefore recommended to include a clause for the limitation of liability for own and other's content, however, it has to be paid attention to the wording, because a limitation/exclusion of liability will be legally valid only within a restricted scope. In particular general templates have to be used with caution (e.g. the one which says "With its judgement of 12. May 1998 the Hamburg County Court has ruled …).

Besides the special requirements of the internet law, there is of course a lot of "ordinary" legal regulation which applies in general on the sale of certain goods and is no special requirement for the internet business. E.g. textiles may only be offered and distributed commercially, if they give information about the kind of and quantity of used textile raw materials. Concerning this, it is not sufficient to sew a label with the information onto the textiles or print them onto the packaging, in fact the information has already to be given in the advertising for textiles, e.g. in catalogues or on internet websites. According to the German Battery Act (BattG) the one who sells batteries (and accumulators etc.) by distance selling, has to give the consumer either in writing when sending the goods or already previously in the product description the information, that the consumer is obliged by law to return used batteries to the dealer or to collecting points an is not allowed to dispose them in the waste bins. Based on a variety of EU-directives and the German Energy Consumption Labelling Ordinance (EnVKV), several duties for labelling and information by suppliers and dealers has been implemented for the sale of white goods. For certain appliances most diverse information has to be given, above all regarding the consumption of energy and the efficiency. According to the German Electrical Equipment Act (ElektroG) every producer of electric and electronic appliances is obliged to get registered at the German Foundation Elektro Altgeräte (EAR), before the goods are brought onto the market. This regulation serves the disposal of electric scrap, since the registered producers have to provide an empty container at a public collection point or collect and dispose a full container (even with goods of other producers) on his own account. When selling computer games, videos, DVDs etc. the provisions for youth protection in the German Youth Protection Act (for data carriers) and in the Youth Protection Media State Treaty (for download) has to be complied with. E.g. this media may only be made available for children and teenagers if they are labelled and released for their age (for games by the USK, for videos by the FSK). Therefore you should check, whether there is any special regulation for your kind of goods.

Even, if you do not sell one of the named products, you should consider that besides the special requirements of the internet law, there is of course a lot of "ordinary" legal regulation which applies in general on the sale of certain goods and is no special requirement for the internet business. E.g. textiles may only be offered and distributed commercially, if they give information about the kind of and quantity of used textile raw materials. Concerning this, it is not sufficient to sew a label with the information onto the textiles or print them onto the packaging, in fact the information has already to be given in the advertising for textiles, e.g. in catalogues or on internet websites. According to the German Battery Act (BattG) the one who sells batteries (and accumulators etc.) by distance selling, has to give the consumer either in writing when sending the goods or already previously in the product description the information, that the consumer is obliged by law to return used batteries to the dealer or to collecting points an is not allowed to dispose them in the waste bins. Based on a variety of EU-directives and the German Energy Consumption Labelling Ordinance (EnVKV), several duties for labelling and information by suppliers and dealers has been implemented for the sale of white goods. For certain appliances most diverse information has to be given, above all regarding the consumption of energy and the efficiency. According to the German Electrical Equipment Act (ElektroG) every producer of electric and electronic appliances is obliged to get registered at the German Foundation Elektro Altgeräte (EAR), before the goods are brought onto the market. This regulation serves the disposal of electric scrap, since the registered producers have to provide an empty container at a public collection point or collect and dispose a full container (even with goods of other producers) on his own account. When selling computer games, videos, DVDs etc. the provisions for youth protection in the German Youth Protection Act (for data carriers) and in the Youth Protection Media State Treaty (for download) has to be complied with. E.g. this media may only be made available for children and teenagers if they are labelled and released for their age (for games by the USK, for videos by the FSK). Therefore you should check, whether there is any special regulation for your kind of goods.

When using the eBay-platform some particularities have to be considered, which above all depend on the fact, that the closing of the contract on eBay is upstreamed, which means that already at the end of an auction or when clicking the buy-it-now-button immediately and automatically a binding contract is closed, without the seller having to give his previous consent. Because of this upstreaming, textform requirements for statutory information can only be met after the closing of the contract since most courts deem the display of information on the eBay offer-page not to comply with textform. Furthermore, some of eBay's input masks/forms do not comply with the legal requirements, so that particular information has to be given at other places as it is intended by eBay.

If you should decide to use the eBay-platform for selling your goods in the future, some particularities have to be considered, which above all depend on the fact, that the closing of the contract on eBay is upstreamed, which means that already at the end of an auction or when clicking the buy-it-now-button immediately and automatically a binding contract is closed, without the seller having to give his previous consent. Because of this upstreaming, textform requirements for statutory information can only be met after the closing of the contract since most courts deem the display of information on the eBay offer-page not to comply with textform. Furthermore, some of eBay's input masks/forms do not comply with the legal requirements, so that particular information has to be given at other places as it is intended by eBay.