Disclaimer

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The term disclaimer is used in internet law as a technical term for an exclusion of liability . Disclaimers mainly appear in e-mails and on websites . It originally comes from the English "to disclaim", which means something like "deny" or "deny".

Email disclaimer

An e-mail disclaimer often means that the reader should have accidentally received the e-mail and is not the intended recipient, should immediately forget the content of the e-mail in question and optionally send the e-mail to the Sender back or send to the desired recipient.

example
NOTE: This is a confidential message and is intended for the recipient only. It is not permitted to copy this message or make it accessible to third parties. If you have received this message by mistake, please let me know by e-mail or on the telephone number given above.

However, according to the overwhelming opinion of lawyers, such e-mail disclaimers are likely to be ineffective. The ineffectiveness is based on two circumstances:

First, it is very difficult to get a third party to forget what has been read. Second, the majority of these disclaimers would be general terms and conditions . However, this would have to be made available to the addressee before the e-mail was opened so that the recipient has the opportunity to agree to this disclaimer before reading the message. Otherwise they are not part of the contract , not even a tacit agreement. Most of the time, such text sections are only found below the content of a message, which excludes any legal relevance.

A disclaimer therefore does not protect confidentiality. However, there may be protection against publication by other laws. This can be given, for example, by copyright protection (longer e-mail text with original embossing or creative quality) or the application of data protection regulations, for example on personal data.

The disclaimer has nothing to do with the signature required by law for business people in Germany . Electronic messages in business dealings include mandatory information, as they are considered commercial letters. These notification obligations expressly do not include any disclaimers.

Website disclaimer

In order to avoid being held liable for links that have been set, there is a reference to the judgment of May 12, 1998 by the Hamburg Regional Court with the file number: 312 O 85/98 on numerous homepages of German operators . With reference to this judgment, it is claimed that one must distance oneself from all links in order not to be liable for them.

example
With the judgment of May 12, 1998, the Hamburg Regional Court decided that by adding 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 of all linked page addresses on my homepage and do not adopt this content as my own.

However, such disclaimers do not protect against legal consequences, see under "Legal evaluation".

Reasons for distancing

If you distance yourself from links, the question arises as to why you give them at all. A link represents a recommendation or the indication of a source. Distancing from the first is hardly possible, from the second the associated text is usually already distanced.

However, there can be several reasons to distance yourself from the link, but to keep it:

  • There is a lot of interesting information on the linked page, which predominates
  • Uncertainty as to whether the linked information is objectionable under criminal or civil law
  • Linking without looking through all the pages of the linked website
  • possible interim changes on the linked page

The last point of the list should also be the most important. Since the linked page is not under your own administration, you have no control whatsoever as to whether the corresponding content later contains legally questionable text passages.

Legal evaluation

Such a disclaimer is legally untenable. In particular, the judgment of the Hamburg Regional Court is misquoted:

The judges decided in a specific case that the mere indication that the link setter does not want to accept any liability for any legal violations on the target page is not sufficient. In a compilation of hyperlinks, the defendant only linked to pages with defamatory statements about the plaintiff. In the opinion of the court, the overall context made it clear that it was adopting these statements. His declaration that he was not liable would not change anything.

The judgment is based on the general principle that existing legal liabilities cannot be unilaterally excluded by those who commit an act of violation. However, the decision was largely interpreted to mean that one now has to distance oneself from the content of the link targets through a more extensive (verbal) explanation.

In the case decided, however, the link setter himself had argued on his own side in a similar way to what happened on the page to which his link referred. Consequently, it is reasonable to assume that the author of the starting page also adopted the content of the target page. Therefore, his release from liability did not constitute a credible distancing.

In the opinion of many authors, the current Telemedia Act standardizes liability privileges in Sections 8 and 9 for cases in which the link maker had no positive knowledge of illegal content, but only if the site operator does not adopt the content of the links as his own. “Make it your own” means giving the impression that it is a matter of your own statements. This can be expressed by displaying the links accordingly.

The online encyclopedia Wikipedia, for example, highlights external links. However, the Federal Court of Justice ruled with judgment of July 17, 2003, AZ: I ZR 259/00 - Paperboy, that the exemptions from liability previously regulated in Section 5 of the Telemedia Act, to which today's Sections 8 and 9 correspond, neither directly nor analogously to the setting of Hyperlinks are applicable because the legislature deliberately did not want to regulate liability for hyperlinks when the Teledienstegesetz was amended.

Therefore the legal situation is still unclear. Above all, this concerns the question of whether negligent liability can also be considered if the hyperlink originally referred to a legally unobjectionable document that was changed without the knowledge of the link provider and now has illegal content.

In a judgment of March 15, 2002, Az. 21 U 1914/02, the Munich Higher Regional Court took the view that the setting of a hyperlink opens up a source of danger and that the link maker is therefore obliged to check for which content even after the hyperlink has been set the hyperlink points. In a judgment of March 30, 2006, the Federal Court of Justice , AZ: I ZR 24/03, ruled that disclaimers on websites must be observed as long as they are meant seriously and clearly visible to the user.

According to the BGH , the advertiser can restrict the area of ​​circulation of the advertisement on the Internet by means of a disclaimer in which he announces that he will not deliver to addressees in a certain country. In order to be effective, this disclaimer must be clearly designed and, due to its design, understood as serious and must actually be observed by the advertiser.

Technical approach to avoid the attribution of foreign views

Following the previous statements of the article and taking into account the statement of the inconsistent case law, there are, among other things, the following possibilities to achieve the greatest possible separation of one's own and third-party views when setting links:

  • Clear identification of external links
  • Opening of external links in new browser windows (however, this method makes you unpopular with many visitors, recommendations for user-friendliness are against it, as is the barrier-free information technology regulation - it requires at least an indication of the opening of a new window; a deprecated HTML attribute is used that was not used in the strict variants of HTML 4.01 and XHTML 1.0)
  • No setting of " deep links ", so always link to the start page of a website (also not very user-friendly)
  • Identify when a link was set. This makes it clear that if the owner of the linked internet presence changed, the intended content was still available there and not the possibly illegal content. Even if illegal content subsequently appears on the linked page, this may protect against liability claims.

See also

Web links

Commons : Disclaimer  - collection of images

Individual evidence

  1. ↑ Joerg Heidrich, fear clauses, in c't 8/2014, Heise Zeitschriften Verlag GmbH & Co. KG, Hanover, 2014, page 136f, https://www.heise.de/ct/ausgabe/2014-8-Die- Relevance-of-email-disclaimers-2226330.html
  2. ↑ Liability for the placement of "links" ( Memento of July 25, 2008 in the Internet Archive ) Judgment by the Hamburg Regional Court
  3. ↑ BGH - judgment of July 17, 2003
  4. ↑ Munich Higher Regional Court - judgment of March 15, 2002 ( Memento of the original of March 16, 2005 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.linksandlaw.de
  5. ^ BGH - judgment of March 30, 2006
  6. ↑ Link liability and disclaimer - The judgment of the LG Hamburg from May 12, 1998