Berlin Regional Court, 31 August 2010, Ref.: 103 O 34/10
Please note: The TMG has been replaced by the DDG. Please note: The TMG has been replaced by the DDG, but the decision likely remains relevant. An overview can be found here.
Pursuant to Section 5 (1) of the German Telemedia Act (TMG), service providers for commercial telemedia, usually offered for a fee, must keep certain information easily recognisable, directly accessible and permanently available. A wilful or negligent breach of Section 5 TMG constitutes an administrative offence pursuant to Section 16 TMG and can be punished with a fine of up to EUR 50,000.
According to § 5 TMG, the following information must be provided in the imprint:
1. name and address of the provider
The name and address under which the provider is established, in the case of legal entities also the legal form, authorised representative, etc.
2. information for quick contact
Information that enables quick electronic contact and direct communication with the provider, including the address of the electronic mail (i.e. telephone number, fax number and e-mail address).
3. indication of the supervisory authority
If the teleservice is offered or provided as part of an activity that requires official authorisation, details of the responsible supervisory authority (e.g. the responsible bar association in the case of lawyers).
4. register and register number
The commercial register, register of associations, partnership register or co-operative register in which the provider is entered and the corresponding register number.
5. sales tax identification number
In cases where the provider has a VAT identification number in accordance with Section 27a of the German Value Added Tax Act (Umsatzsteuergesetz), this number must be stated.
6 Additional obligations for special occupational groups
In the case of providers who belong to the so-called liberal professions (i.e. lawyers, tax consultants, auditors, doctors, dentists, architects, consulting engineers, etc.), the chamber to which the service provider belongs, the legal professional title and the state in which the professional title was awarded as well as the name of the professional regulations and how they can be accessed must also be stated (i.e. either in full text or by link reference).
7 Special disclosures for AGs, KGaA and GmbHs
In the case of public limited companies, partnerships limited by shares and limited liability companies in liquidation, the information on this.
8. further information
In addition to this information, there are further information obligations, in particular under the Distance Selling Act, the Distance Learning Protection Act, the Part-Time Housing Rights Act or the Price Indication and Price Clause Act and the Price Indication Ordinance, the Insurance Supervision Act and commercial law provisions.
When a provider offers business-like teleservices and must therefore provide the above-mentioned information is not precisely defined in the law.
According to Section 2 No. 1 TMG, a "service provider" is any natural or legal person who makes their own or third-party teleservices available for use or provides access to them. For the question of when a commercial teleservice is given, one can refer to § 2 No. 5 TMG, which defines the term "commercial communication" in more detail. According to Section 2 No. 5 TMG, "commercial communication" is any form of communication that serves to directly or indirectly promote the sale of goods, services or the image of a company, another organisation or a natural person who carries out an activity in commerce, trade or craft or a liberal profession. This definition is an indication that the German legislator wanted to regulate as comprehensive an obligation as possible for all types of providers when implementing the directive. Even if you only offer a banner advert on your private website, in the author's opinion this justifies the obligation to provide an imprint.
In the above-mentioned judgement, the Berlin Regional Court had to decide whether the absence of the commercial register, the commercial register number and the VAT identification number in the legal notice of an online shop was to be classified as anti-competitive.
Facts of the Case:
The defendant offered vehicles on the Internet under a certain domain without providing information on the commercial register, the commercial register number and its VAT identification number. The plaintiff warned the defendant accordingly and demanded that the plaintiff pay the warning costs. In the plaintiff's opinion, the defendant had violated Section 4 No. 11 UWG in conjunction with Section 5 TMG and Section 5 a (2) and (4) UWG in conjunction with Directive 2005/29/EC and Directive 2000/31/EC by failing to provide this information.
Decision of the Regional Court of Berlin
The Berlin Regional Court did not agree with the plaintiff's view. The plaintiff was not entitled to compensation for the warning costs under Section 12 (1) sentence 2 UWG, as the warning was not justified. A warning is only justified if it is justified, authorised and not abusive. Although the plaintiff's behaviour was to be classified as anti-competitive, the warning to this effect failed due to the relevance clause (triviality clause) of Section 3 (1) UWG. According to this clause, only such unfair commercial acts are unlawful that are likely to significantly harm the interests of competitors, consumers or other market participants. However, the missing information on the defendant's website was not likely to significantly impair the interests of consumers, namely the ability to make a decision based on information. The purpose of Section 5 TMG is to enable consumers to assert their rights. For this purpose, the consumer does not need to provide the commercial register and the registration number, and certainly not the VAT identification number, which is only used by the tax office. This information is also irrelevant for the decision as to whether the consumer wishes to enter into business contact with the defendant at all.
Source: Berlin Regional Court
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