Is a disclaimer legal
Exclusion of liability (disclaimer) on websites - necessary or nonsense?
The term “disclaimer” is the noun of the English “to disclaim”, in German “denien”, “not recognize”. You can often find disclaimers in the imprint of websites. The person responsible for the website wants to achieve an exclusion of liability by distancing himself from all content of external links on his site, for example:
Despite careful content control, we assume no liability for the content of external links. The operators of the linked pages are solely responsible for their content.“
On many websites, the disclaimer refers to a judgment of the Hamburg Regional Court from 1998 (file number: 312 O 85/98), for example:
With the judgment of May 12th, 1998, the district court of Hamburg decided that by placing a link, one may be jointly responsible for the content of the linked pages. This can only be prevented by expressly distancing yourself from this content.
The following applies to all links on this homepage: I hereby expressly distance myself from all content on all linked pages on my homepage and I do not adopt this content as my own.
The fact that many disclaimers are simply copied and inserted into the imprint pages without much thought or checking can be seen from the spelling mistake in the word "responsible", in the disclaimer "responsible". If you enter the misspelled word into a search engine (for example in Bing: + answer), you get over 30,000 hits.
Of course, nobody can generally distance themselves from their own actions, reject any responsibility and exclude liability.
Liability for damage caused intentionally or negligently cannot be excluded by simply saying “I am not liable”. In case of doubt, a court will decide whether or not to be liable for damage.
In contract law there is the possibility to exclude or limit liability (liability clause). When opening a website, however, no contract is usually concluded, as a contract is always concluded in advance. But even in a valid contract, for example, statutory claims for damages cannot be limited (clause prohibitions).
It certainly makes sense that one should not insult readers on a website, publish insulting things through third parties or deliberately publish false information to the detriment of others.
Most disclaimers are written because the court judgment mentioned was often misunderstood. In addition, many authors simply copy without reading the verdict.
In the judgment it says:
After another legal dispute between the parties had preceded, the defendant had ... links to information available on the Internet about the plaintiff included on his website, ....
The plaintiff considers this “reporting” to be immoral and regards his general personal rights as violated. The defendant is liable because by referring to the webpage ... he has made the statements there his own.
(The defendant thinks) ... by compiling the statements made about the plaintiff, he opened a “market of opinions”.
Furthermore, by including a liability exemption clause, he had made it clear that he was not assuming any responsibility. In addition, he makes use of his right to freedom of expression.
In a nutshell:
The defendant is the person responsible for the website. He had published links to external sites, the content of which the plaintiff regards as a violation of his personal rights. So it's about insult.
The defendant has distanced itself from the external content in a disclaimer.
What the court says:
The action is based on § 823 I, II BGB in conjunction with §§ 186 StGB, 824 BGB due to violation of general personal rights and the plaintiff's honor.
By including a so-called link to the webpage ... on his homepage, the defendant has made the ... defamatory and insulting factual assertions as well as expressions of opinion his own.
(The) Disseminating a disparaging allegation of fact made by a third party about another (can) represent a violation of personal rights if the person making the claim does not distance himself sufficiently from it. In any case, the defendant did not make such sufficient distancing by referring to the responsibility of the respective author. This is not a distancing, but rather a transmission that is not responsible and thus a separate distribution.
A disclaimer is not enough to exclude liability for offense. The court found that insults were deliberately published under the guise of distancing themselves.
If you reproduce an offensive utterance by a third party, you have to distance yourself from it sufficiently so as not to become an offender yourself.
The Telemedia Act provides information on this:
(1) Service providers are responsible for their own information, which they make available for use, in accordance with general laws.
(2) Service providers within the meaning of Sections 8 to 10 are not obliged to monitor the information they transmit or store or to investigate circumstances that indicate illegal activity. Obligations to remove or block the use of information in accordance with general laws remain unaffected, even if the service provider is not responsible under sections 8 to 10.
Service providers are not responsible for third-party information that they save for a user, provided they have no knowledge of the illegal act ... ... or they have acted immediately to remove the information or block access to it as soon as they have gained this knowledge.
In a nutshell:
The service provider is responsible for its own pages.
The person responsible must carefully select and check the content of external links. There is no obligation for constant monitoring. If illegal content becomes known, however, action must be taken immediately and the link removed.
In addition, it certainly makes sense to clearly mark links to external content and to make them distinguishable from links to your own content.
Not really, but ...
The Berlin commissioner for data protection and freedom of information has on its website instead of the typical nonsensical disclaimer “I am not liable” a page “Legal information (disclaimer)”.
Liability is not excluded there, but the reader is asked to report illegal content:
"If you (the Berlin commissioner for data protection and freedom of information) determines or is advised by others that a specific offer to which it has provided a link triggers civil or criminal liability, it will remove the reference to this offer. "
The Berlin Commissioner for Data Protection and Freedom of Information refers to the Telemedia Act §7 (1) under the heading “Note on the problem of external links”. However, the remark shows that there is great uncertainty regarding disclaimers "... that due to the largely unclear legal situation with regard to responsibility for links we cannot guarantee ..."
Anyone who does not offend anyone, has nothing illegal in mind, carefully selects links to external content and immediately takes care of the website if illegal content becomes known, does not need a disclaimer.
Usually you link to external content because you think the content of this page is good and correct. To say, I link, but I distance myself from what is written there, is implausible and somehow also offensive to the provider of the external content. Or?
On the contrary, anyone who inserts a disclaimer in order to publish what is illegal under the guise of not seriously intended distancing is liable to prosecution.
And an imprint?
An imprint must be available, as the Telemedia Act requires it. In paragraphs §5 and §6 you can read what an imprint must contain. A missing or incomplete imprint is an administrative offense that is punishable by a fine of up to fifty thousand euros.
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