German case-law related to cyberlaw (1999-2000)
Graham, Editor of Cyberbanking & Law
Metatags - search engines - keywords - trademark - infringement (yes).
am Main, 14/12/99, 3/11 O 98/99,
In a preliminary
unfair competition trial, plaintiff obtained from Court an injunction
ordering defendant to abstain from using a litigious trademark. However,
plaintiff noticed several weeks after the first injunction that the
trademark continued to be used as keyword in search engines leading
to the defendant's homepage. Consequently, plaintiff urged the Court
a new injunction ordering defendant to eliminate all reference in
search engines. Plaintiff alleged those last ones, in this case Altavista
and Nettz, not accidentally index pages, but on the contrary,
only index pages, which do contain metatags. The fact that the litigious
trademark used as keyword leads to the defendant's homepage does mean
that the trademark is used expressly as metatag in the defendant's
Mannheim previously ruled, a person is liable for trademark infringement,
even if the metatag using the litigious trademark is due to a third
party, for instance the designer of the web pages. That's why in
casu, it is up to the defendant to insure that search engines
do not use the litigious trademark to index the defendant's homepage.
Although the defendant has no possibility to check all search engines
existing in the Internet, it is not sufficient to contact only one,
namely yahoo.com. Insofar, the first injunction is confirmed.
the Court does not explain how many search engines, and which ones,
must be contacted in order to follow the injunction. Furthermore,
on one hand, the Court underlines that the injunction does not present
any technical impossibility, but, on the other hand, concedes that
it is not possible to eliminate all search indexes using the litigious
Framing - copyright - infringement (yes).
LG Hamburg, 12/7/00,
308 O 205/00,
The Court upheld
a preliminary injunction, which ordered the Webmaster to remove the
link leading to the content of the plaintiff's site, if it appears
within a frame of the defendant' site without any mention to the source
Web site, as it constitute doubtlessly a copyright infringement.
Unfair Terms (yes) - on-line banking.
OLG Köln, 14/4/2000,
6 U 135/99,
Cyberbanking & Law, www.cyberbanking-law.lu
The OLG Köln considered
a contractual provision, which foresees that the bank can "for any
important reason cancel the online-banking service" as an unfair term.
Not only that the client is not informed in advance of this measure,
but also because the appreciation of the "important reason" relies
entirely on the bank's interpretation of the concerned facts.
ruling can be approved in the light of Directive 93/13 of 5 April
1993 that defines the unfair term as a clause, which "has not been
individually negotiated and, contrary to the requirement of good faith,
causes a significant imbalance in the parties' rights and obligations
arising under the contract, to the detriment of the consumer" (Article
Contractual liability (yes) - on-line brokerage - delayed order.
19/5/1999, 14 O 9971/98,
on-line at 8.18 am 500 shares at the Market place B. At 8.19 the on-line
Broker send the confirmation receipt. At 8.30 the Market place B opened
and the requested shares were traded 244 DM/piece. However, due to
a routing problem, the order was only executed later, and the requested
shares were bought at 268 DM/piece. The on-line broking contract foresaw
in its general conditions, that if an order is not executed in a lapse
of 30 minutes of the issue of the buying order, the client obtains
"the executing price he deserves". This clause has been interpreted
by the on-line broker in the sense that the client ought to obtain
the price that is fixed on the market 30 minutes after the requested
order. The Court, in analyzing the general conditions, however remarked
that on six different pages, the accent has been put on the fact that
the orders are "immediately" executed. Therefore, the retained price
should be the one fixed at the beginning of the trade session, namely
For a similar
case concerning phone-banking:
OLG Schleswig-Holstein, 4/5/2000, 5 U 227/98, www.cyberbanking-law.de
III. Extra-contractual liability (Torts)
Liability (torts) - virus infections - wrongful conduct (no).
AG Köln, 21/12/98,
125 C 533/98,
upheld by LG Köln, 21/07/99, 20 S 5/99,
A freelance journalist
sued his editor for having handed him out an infected disc containing
different texts and alleged financial prejudice consisting in having
had to require a specialized firm in order to "clean up" his Pc and
to restore lost data. The Amtsgericht of Köln ruled that for involving
the responsibility of the defendant a wrongful conduct must be proven.
However, in casu, the defendant had installed on his own Pc two different
virus scanners, which were regularly updated, and neither of them
detected the so-called Schumann Virus. The Court underlined that there
are daily new viruses, and consequently, only the fact to have no
anti-virus programs or to give away knowingly infected discs can be
considered as wrongful. Consequently, the demand was denied.
On appeal, the
first ruling has been upheld; the Court specified that there is no
general obligation to warn the person to whom the disc is handed out
of a possible presence of viruses. In fact, such a danger is known
today to all computer users, so that no special warning is required.
Civ1, 25/11/97, obs. Graham,
Cyberbanking & Law, http://rechtsinformatik.jura.uni-sb.de/cbl/cbl-journal0100.php,
for a similar case ruled by the French Supreme Court.
Liability (torts) - mirroring - copyright - infringement (no) -
mere conduit (yes).
3/2/2000, 6 U 5475/99,
A German university
was running an FTP server that mirrored among other a freeware site
located in the USA. However, the latter proposed a product, which
was still subject to a copyright dispute between the plaintiff and
a third party. Plaintiff requested an injunction against the university
to make them cease to propose the litigious product. For its part,
the university argued that its server only mirrored the proposed content
of the original server in the US and that consequently, it could not
" stop to propose " the product as long as it was proposed on the
source server. Plaintiff, however, requested that at least the Court
should oblige the university to not use the name of the product in
its pages in order to permit links to the source server. The injunction
has been refused as the judge has considered that the name of the
product is not used as a copyrighted trademark, but only for descriptive
purposes. On appeal, the Landgericht decided that the mere
conduit clause of the German Law of 1997 has to apply as defendant
did not propose any proper content, but allowed only through its site
to access content located on other sites.
Directive 2000/31 of 8 June 2000 on E-commerce does not deal clearly
with the ruled hypothesis. Article 12 foresees that Internet Access
Providers (IAP) are exempted of their liability if they only transmit
information without having selected or modified the contained information.
Furthermore, the mere conduit clause also plays for caching,
if the automatic, intermediate and transient storage is not done for
any period longer than reasonable necessary for the carrying out of
the transmission. It seems to us that mirroring cannot be considered
as a caching mechanism in the light of the above given definition
as the accent is put on the temporary aspect of the method. In regard
of access providing services, mirroring implicates that the server
owner "selects" the server to be mirrored, with its content. Although
it is true that the university could not take off the incriminate
content, it would nevertheless have been possible to cease to mirror
the whole source server. However, one has to bear in mind that if
the Court had followed such a reasonning, the implications in regard
of freedom of expression would have been tremendous. The consequence
would be that that it could be sufficient to look for whatever copyright
infringed material to shut off the whole mirror server, which nevertheless
participates in a better organization of the bandwidths.
Liability (torts) - linking - freedom of expression - libel (yes).
LG Hamburg, 12/5/1998,
312 O 85/98,
to a Web page that published a defamatory statement about plaintiff.
The latter considered that defendant was faulty and thus should be
rendered liable for having casted a slur on the plaintiff. Defendant
argued that he only linked the page for information purposes, exercising
thus his freedom of expression. Court considered that the fact that
plaintiff made only a link to that page without any disclaimer could
be interpreted as if he had made his the expressed opinion in that
page. He should have taken some " distances " (sic) with the expressed
opinion. Consequently, defendant has to be condemned.
LG Lübeck, 24/11/1998, 11 S 4/98,
used an inline-link (deep link), one has to consider the linked page
as the defendant's own page, and the content of the linked page as
his own content, about which he assumes liability.