MastheadObligation

03 March 2003

Jan-Peter Ohrtmann

Recent German case-law indicates that incomplete mastheads on websites may result in an action for an injunction from a competitor.

As a result of two recent decisions of the Landgericht Düsseldorf, Providers of so called “Tele Services”, which are basically Internet content and access providers, operating in Germany should review whether their websites comply with German information requirements.

Relevant Provision:

Section 6 of the German Tele Services Act of July 22, 1997 (Teledienstegesetz) states that a provider of Tele Services must provide a user or customer of that service with details of the business providing the service (the so-called “masthead obligation”).

These details include, for example, the full business name, official address and registered number under which the provider has been legally established (or, in the case of bodies corporate, their authorised representative), as well as any e-mail address, telephone and/or facsimile number by which a user can contact the provider.

Previous Case Law

In an earlier decision on September 19 2001 [12 O 311/01]), the Landgericht Düsseldorf did not consider a failure to comply with the masthead obligation as "unfair competition" and therefore a breach of Sections 1 and 3 of the Unfair Competition Act of June 7, 1909 (Gesetz gegen den unlauteren Wettbewerb). For there to be such a breach, the court held, the provider would need to have failed in its further (and arguably more serious) obligations to its users: for example, failing to inform the user fully about their right to cancel orders.

New Case Law

However, in two recent decisions (on November 7, 2002 [34 O 172/02] and November 25, 2002 [(34 O 188/02]), the Landgericht Düsseldorf has now decided that this may not be the case. Accordingly, it has now deemed that the failure of the provider to comply with the masthead obligation is inherently anti-competitive under the Unfair Competition Act.

The court has not provided any reasons for this new approach. Possibly the court considered that a provider who did not comply with the masthead obligations was placed at an unfair competitive advantage in comparison with those that do. Such an advantage is generally regarded as unfair competition according to Section 1 of the Unfair Competition Act.

Practical Consequences:

The decisions of the Landgericht Düsseldorf have a considerable, practical influence. Consequently it is likely that (in the near future at least) the number of warning letters sent out from attorneys to providers on the basis of incomplete mastheads will increase. This is because it is a straightforward task to review such mastheads and identify any non-compliance with the masthead obligation. Therefore, it will be an easy and cost- and time-effective way of putting a non-complying competitor under pressure.

Additionally, if the non-complying party can be sued in the Düsseldorf courts under Section 24 of the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb) then the risk to the provider issuing the complaint of loosing the case is relatively low. According to Section 24 para. 2 sent. 1 Unfair Competition Act a party can be sued by certain persons/bodies corporate for acts of unfair competition at the place where the respective act has taken place. In case of the use of Internet this is basically any place within Germany, including Düsseldorf.