Siegen Regional Court, 09.07.2013, Ref.: 2 O 36/13
Please note: The TMG (Telemedia Act) has been replaced by the DDG (Digital Services Act). However, the content of this article remains relevant. You can find an overview here. Please note: The TMG has been replaced by the DDG, but the decision likely remains relevant. An overview can be found here.
In principle, all providers of telemedia, i.e. any natural or legal person who makes their own or third-party telemedia available for use or provides access to it, are affected by the obligation to provide a legal notice for websites.
Whether a provider based in Germany that provides its teleservice abroad is obliged to offer an imprint in accordance with the requirements of Section 5 DDG is repeatedly the subject of court decisions.
This also applies to the question of whether a provider based abroad must provide an imprint in accordance with the requirements of Section 5 DDG, which also offers its teleservice in Germany, among other places.
These questions are based in particular on the country of origin principle.
According to the country of origin principle, a provider of teleservices must in principle only observe the substantive law of the state in which it has its registered office, even if it provides teleservices across borders in another EU member state.
A German service provider based within the scope of the TMG is therefore subject to German law even if it offers or provides its service abroad.
In the above-mentioned decision of the Regional Court of Siegen, the court had to decide whether a service provider based in Egypt and offering cruise excursions in Egypt via the Internet was obliged to comply with the consumer information provisions of Section 5 DDG.
If you would like to create an imprint, you can use our free imprint generator.
Facts of the Case:
Plaintiff and defendants were competitors and offered cruises
The plaintiff organised cruises and offered, among other things, individually bookable excursions to and in Egypt.
Excursions during shore excursions on cruise holidays in Egypt were also offered on a competitor's website. This website only contained the following information in the legal notice:
Cruise excursions
Hurghada/Egypt
Tel:
E-Mail: "
The plaintiff obtained an interim injunction against the defendant due to a lack of information
On 25 June 2012, the plaintiff obtained an interim injunction against the defendant (operator) from the Hamburg Regional Court under case no. 315 O 264/12.
The preliminary injunction prohibited the defendant from offering the website without the mandatory information set out in Section 5 TMG.
The following information in particular was decisive in this respect:
- the name and address under which the service provider is established and, in the case of legal entities, the legal form,
- the commercial register, register of associations, partnership register or register of co-operatives in which the service provider is entered and the corresponding register number,
- the sales tax identification number
After service of the preliminary injunction, the defendant blocked the website
In any case, since 6 August 2012, the person named in the legal notice was registered as the domain holder of the website in dispute.
Previously, the provider of the website in dispute had been changed.
In response to the defendant's objection, the Hamburg Regional Court revoked the interim injunction of 25 June 2012 in its ruling of 14 September 2012, dismissed the application for its issuance and ordered the plaintiff to pay the costs of the interim injunction proceedings.
With the action, the plaintiff now sought in the main action the injunctive relief asserted at the Hamburg Regional Court in the preliminary injunction proceedings as well as the costs determined by order on the basis of the judgement of the Hamburg Regional Court from the defendant by way of damages under the aspect of tort for making a false affidavit.
Decision of the Siegen Regional Court
Siegen Regional Court saw no claim for injunctive relief or damages
The Siegen Regional Court disagreed. In the opinion of the Regional Court, the plaintiff was not entitled to claim injunctive relief or damages from the defendant.
Foreign service providers are not obliged to comply with the requirements of Section 5 TMG due to the country of origin principle manifested in Sections 2a and 3 TMG.
The term "country of origin" used in the heading of Section 3 TMG means that the law of the place of establishment of the service provider is authoritative.
If an economic activity had an impact on the territory of several countries, there would be a risk that it would be judged differently in each country and that economic trade would be hindered by requirements of various kinds.
The Community law country of origin principle, on the other hand, allows for a uniform assessment.
Foreign service providers are not obliged to fulfil the requirements of the imprint obligation.
Accordingly, each Member State should ensure that the activity emanating from its territory complies with the rules of Community law; it therefore assumes the supervisory role.
Activities originating from other Member States should therefore not be hindered for reasons that fall within the area coordinated by Community law, in particular by a directive.
Therefore, a uniform minimum standard must be maintained for domestic activities and foreign activities must not be interfered with.
The country of origin principle also extends to international competition law.
It therefore modifies the market place principle with the consequence that it is sufficient for advertising to be lawful if it complies with the regulations of the foreign place of establishment.
The country of origin principle therefore means that no further restrictions can be based on the competition law of other Member States.
It is true that the country of origin principle manifested in Section 3 TMG does not apply to providers from third countries (such as Egypt).
However, this does not automatically lead to the applicability of the TMG. Rather, the applicable law in this case is governed by the rules of private international law.
In this respect, it is decisive that, in the case of the conclusion of a contract by a German consumer with a service provider based in Egypt and offering excursions for tourists on cruises in Egypt via the Internet, the contract is governed by Egyptian law pursuant to Article 29(4) EGBGB in conjunction with Section 28(1) sentence 1 EGBGB and Article 6(4)(a) in conjunction with Article 4(1)(a) Rome I Regulation.
According to Art. 29 para. 4 EGBGB or Art. 6 para. 4 lit. a) Rome I Regulation, Art. 29 para. 1 to 3 or Art. 6 para. 1 and para. 2 Rome I Regulation are not applicable to contracts for the provision of services if the services owed to the consumer must be provided exclusively in a country other than the country in which the consumer has his habitual residence.
The service of organising and carrying out the excursion is provided exclusively in the destination country and does not constitute a trip within the meaning of Section 29 (4) sentence 2 EGBGB.
Therefore, if the desired conclusion of the contract by the German consumer is subject to Egyptian law, nothing else applies with regard to the consumer information provisions required in this respect.
If you would like to create an imprint, you can use our free imprint generator.
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Note: The content of this article has been created to the best of our knowledge and belief. However, the complexity and ever-changing nature of the subject matter make it necessary to exclude liability and warranty. This article cannot replace legal advice.
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