Admissibility of and liability for hyperlinks

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The admissibility of and liability for hyperlinks is an area of internet law . Among other things, it affects areas of economic , civil , criminal and copyright law . Hyperlinks are the basic conceptual components of every hypertext and thus of the entire World Wide Web . The legal discourse on liability for hyperlinks relates to the type and scope of the admissibility of the attachment of hyperlinks and the admissibility of the attachment of hyperlinks per se.

Definitions

In the now quite differentiated legal technical discussion, a distinction is made between various basic forms of linking:

  • Internal links redirect the user within a website and therefore do not cause any legal problems. External links lead from your own website to the website of a third party.
  • Surface links and deep links refer to two different categories of external links: Surface links refer to the start page of a website, for example to http://www.wikipedia.org/ . Deep links to a special page within a website, for example to http://de.wikipedia.org/wiki/Haftung_für_Hyperlinks or another file.
  • Hotlinks integrate external content into your own website without the external origin of these elements being apparent to the user; see also Immersion and Syndication .
  • Framing is a special case of hotlinking and enables larger parts of an external offer to be integrated into defined areas of your own website using the frame technology; Here, too, the origin of the elements is not immediately apparent to the user.

discourse

In all legally controversial contexts, the question of liability for hyperlinks ultimately always revolves around the extent to which the linking party adopts the content of the link target; this can either be inadmissible under copyright law or result in criminal prosecution in the event of links to illegal content.

Tim Berners-Lee , the “inventor” of the World Wide Web , assumes, analogous to footnotes and cross-references in the scientific literature, that the mere presence of a hyperlink cannot constitute an infringement; the author of a text does not automatically adopt the content of the referenced document by adding a footnote or a cross-reference. Berners-Lee points out that the concepts of reference and inclusion are older than the paper (cf.). The principle of mutual referral is one of the foundations of scientific work; if this referral principle were fundamentally illegal , it would make any scientific work impossible as we understand it today (see On the shoulders of giants ). However, Berners-Lee differentiates that, for example, the link text describing the hyperlink can and should be meaningful. He therefore calls for the responsible treatment of these link texts, which could give the reader important information about the content of the target document. The combination of link text, accompanying text around the hyperlink and the content of the linked target can also be used to construct legal violations.

As a rule, the courts do not share this entire comprehensive opinion of Berners-Lee, although parts of the legal literature had advocated the reference principle.

National case law

Germany

The majority of jurisprudence affirms liability if the content of the linked page has been adopted, for example by naming a brand .

In Germany, the attachment can be a hyperlink with costs on a site in such cases reprimanded be; usually high amounts in dispute in the range of 50,000 to 250,000 euros are set, which in any case result in high legal fees of several thousand euros. The policies of legal expenses insurance will not cover such litigation generally.

The Munich law firm Waldorf , which issued several hundred such warnings between 2003 and 2004, is known for series warnings due to the attachment of hyperlinks to allegedly illegal content such as copy programs for audio CDs .

Legal bases

In Germany, important legal sources include the UrhG , until March 1, 2007 the TDG and the MDStV , then the TMG , but also some European legal acts, including the most important Directive 2001/29 / EC (Copyright Directive) .

Copyright admissibility of hyperlinks

Under the aspect of copyright it is questionable whether the linking party encroaches on the rights guaranteed to the author by setting a link. Thereby, a distinction is made between three types of exploitation rights and differentiated with regard to the admissibility of links.

  • In Germany, the prevailing legal opinion assumes that setting a hyperlink to a work protected by copyright does not affect its reproduction rights. There is no such prevailing view in Anglo-American jurisprudence; a distinction is often made here between surface and deep links , the former i. d. As a rule, they can be regarded as permissible, while the latter may be inadmissible.
  • Also, the distribution right is not affected by the legal doctrines through a hyperlink, since the setting of a hyperlink can not be construed as offering or marketing of foreign content alone.
  • Is debatable, however, whether the setting of a hyperlink without consent of the copyright holder may enter the editing right engages the author. The assessment of the special link forms of inline links and framing is particularly problematic . With the BGH judgment of July 9, 2015, the embedding of third-party videos was declared compatible with copyright law in Germany.

Admissibility of hyperlinks under competition law

Legal basis for competition law classifying the admissibility of hyperlinks are next to the Copyright Act , the Unfair Competition Act . In particular, the following five aspects are classified as critical in the legal discussion:

  • A justification for injunctive relief under competition law is based on the assumption of misleading according to §§ 1, 3 UWG; It is argued that the user "gains the incorrect impression that the third-party content was created by the operator of the linking website or was at least linked with appropriate permission." The legal assessment of this aspect is controversial.
  • The allegation of unfair exploitation of services presupposes that it is assumed that the setting of a hyperlink takes on third-party services immediately; However, this assumption contradicts the idea of ​​hyperlinks as well as the underlying idea of references or footnotes . However, there may be an unfair exploitation of services if the linking party is guilty of deceiving their origin .
  • According to Dittrich, a violation of § 1 UWG is ruled out under the aspect of reputation exploitation . However, this view is not shared uniformly by the case law, for example the Hamburg Regional Court contradicts this interpretation in the so-called Bundesliga manager decision (see here).
  • The allegation of handicap is primarily about the assumption of a so-called competitor handicap in their ability to present advertising banners to the extent they want; It is argued that the linking variant of deep links in particular inadmissibly restricts the possibility of the content provider to present a certain amount of advertising space to the user. The legal assessment of this aspect is controversial, especially if the linking competitor also has an advertising hindrance within the meaning of § 1 UWG, for example through disruptive measures.
  • Prohibited comparative advertising exists if an element of Section 6 (2) UWG is met. In all other cases, comparative advertising is generally permitted under German law according to Section 6 (1) UWG.

Links to illegal or criminal content

According to Art. 5 GG , links to illegal or punishable content are fundamentally protected in an opinion-related or scientific context; this special regulation is expressly confirmed in Section 86 (3), Section 86a (3) and Section 130 (6) of the Criminal Code .

A relevant case study from 1997 is the homepage of the PDS politician Angela Marquardt , on which there were links to the magazine Radikal ; Marquardt was charged by the public prosecutor's office for deliberately disseminating and aiding in illegal content, but was acquitted by the Berlin-Tiergarten district court because it was not possible to prove that she was aware of the inadmissible content that was only published on this page after the link was set (cf. and)

Another example is the preliminary investigation against the Berlin journalist Burkhard Schröder , who researched right-wing extremism and made an extensive collection of links available on his website. The Berlin public prosecutor's office assumed there was a “general possibility of criminal behavior by setting a link”, and Schröder had not distanced himself or provided explanatory information. The proceedings were closed at the end of 2001.

Stefan Münz , who himself had become a warning victim in the Explorer case in 2000, spoke of practices in view of the abuse of warnings on the Internet that had become a generally dangerous threat.

While the Federal Court of Justice (BGH) still in his Beautiful betting ruling affirmed a limited link liability of press organs of 1 April 2004, which are constitutionally protected by Art. 5 GG press and freedom of expression in light of the stringent legal requirements currently again in question.

The Munich Regional Court ruled in March 2005 in the heise vs. Music industry against the Heise-Zeitschriften-Verlag , operator of the online service heise.de , that he had to remove the link to illegal software set in the context of his reporting and that he was no longer allowed to use such links. The fact that the software was named in the report and that the website can therefore be found in a few seconds using the name and a search engine even without a link was irrelevant for the court. The Munich Higher Regional Court confirmed the regional court's decision in the appeal proceedings . The criticized report itself is covered by the freedom of opinion and freedom of the press, but not the setting of the link, which is merely an "additional service". The Federal Court of Justice, however, overturned the judgment and decided that the setting of a link to the homepage of the software manufacturer Slysoft did not constitute a copyright infringement, not even in the sense of interferer liability. The judgment is final.

On the other hand, the Regional Court of Karlsruhe decided in a decision of March 23, 2009 that the operator of a website could make himself liable to prosecution by setting a link to a website with criminal content:

“Basically, however, the provider of a homepage becomes active by setting up a link (cf. BGH [decision of June 27, 2001, 1 StR 66/01 = BGHSt 47, 55 to 62, ed.], Page 60). Due to the network-like structure of the WORLD WIDE WEB, every single link in the sense of the conditio-sine-qua-non formula is causal for the distribution of criminal content, even if this can only be reached via a chain of links from other providers. As a restriction, however, it is always necessary to check in individual cases whether the provider of the link appropriates the criminally relevant content in sufficient form. "

- Decision of the Karlsruhe Regional Court of March 23, 2009, QS 45/09, Rn. 8th

In 2015, the condemned Amtsgericht Cham a 53-year-old man on facebook a holocaust-denying and impunity in the country of origin USA Text had linked, because of sedition to a fine of 750 euros. The defendant had denied wanting to deny the Holocaust.

Liability for the content of the linked document

A prevailing legal opinion on liability for hyperlinks does not yet exist in Germany; The positions range from the denial of any responsibility for the content of linked documents to full liability for the external document and any changes to it.

  • If a hyperlink is selected manually and entered in a web document, Section 9 (1) TDG (now Section 8 TMG) is not applicable under German law , as the person making the link has consciously selected the information. However, this line of reasoning no longer necessarily applies as soon as the compilation and presentation of the links is controlled by algorithms ; this restriction applies in particular to search engines , but could also be applied to web portal systems.
  • Stadler advises "to analyze exactly which specific behavior is supposed to justify the legal violation", since the questions of liability in connection with the setting of hyperlinks "can by no means be answered in a general and schematic way".
  • Stadler is of the opinion that “the jurisprudential discussion of link liability cases based on § 5 TDG a. F. […] in itself is invalid ”(cf. para. 19).

Austria

In Austria, the responsibility for hyperlinks is regulated in Art. 1 § 17 of the E-Commerce Act (ECG), in that he is not responsible for "opening up access to third-party information",

"1. if he has no actual knowledge of an illegal activity or information and is not aware of any facts or circumstances with regard to claims for damages that make illegal activity or information obvious, or
2. as soon as he has gained this knowledge or awareness, takes immediate action to remove the electronic reference. "

- Art. 1 § 17 No. 1

The exception is "if the person from whom the information originates is subordinate to the service provider or is supervised by him or the service provider presents the third-party information as his own." (Art. 1 § 17 Z. 2)

The highest Austrian court, the Supreme Court , has argued in the case austropersonal.com II, jobmonitor.com that the linking party is adopting the content of the external website.

See also

literature

  • Stephan Ott: Liability for linked content contrary to copyright in Germany, Austria and the USA. in: Commercial legal protection and copyright - International Part ( GRUR -Int.) 2007, pp. 14–28 Extensive scientific analysis with quotation of the opening sentence of the section Liability for the content of the linked document of this article in the version of September 20, 2006 as the beginning of Statements.
Switzerland
  • Stephanie Müller: The criminal responsibility for references through hyperlinks according to German and Swiss law. 2011, ISBN 978-3-428-13458-8 , Duncker & Humblot GmbH, Berlin, criminal law treatises. New episode (SRA 224)

Web links

Fundamental:

Germany:

Individual evidence

  1. ^ Tim Berners-Lee: The Implications of Links - Axioms of Web architecture . ( w3.org [accessed February 8, 2008]).
  2. ↑ https://www.heise.de/newsticker/meldung/OLG-Muenchen-FTP-Explorer-Link-verletzt-Markenrecht-44195.html
  3. ↑ Spiegel.de: BGH judgment: Embedding third-party videos is compatible with copyright law , accessed on July 9, 2015.
  4. ↑ a b Jörg Dittrich: On the question of the copyright and competition law admissibility of hyperlinks . ( jurpc.de [accessed on February 8, 2008]).
  5. ^ Judgment of January 2, 2001 (Az .: 312 O 606/00); see, for example, Computer und Recht 2001, page 265, or IT-Rechts-Advisor 2001, page 210
  6. ^ LG Hamburg, judgment of January 2nd, 2001, 312 O 606/00 . ( jurpc.de [accessed on February 8, 2008]).
  7. ↑ The BVerfG confirmed the view of the BGH, according to which both freedom of opinion and freedom of the media take place (see BVerfG, decision of December 15, 2011 - 1 BvR 1248/11 -).
  8. ↑ TP: Hyperlink Trial: acquittal for Angela Marquardt . ( heise.de [accessed on February 8, 2008]).
  9. ↑ TP: The first day of the trial against Angela Marquardt . ( heise.de [accessed on February 8, 2008]).
  10. ↑ TP: A hyperlink to jail? ( heise.de [accessed on February 8, 2008]).
  11. ^ Burkhard Schröder: Information portal racism & anti-Semitism
  12. ↑ heise online - Left to right is not a criminal offense . ( heise.de [accessed on February 8, 2008]).
  13. ↑ Stefan Münz: What is this all about? ( advograf.de [accessed on February 8, 2008]).
  14. ^ BGH, judgment of April 1, 2004 (PDF; 54 kB), Az. I ZR 317/01, full text.
  15. ↑ https://www.heise.de/newsticker/meldung/Heise-vs-Musikindustrie-Bundesgerichtshof-verwirft-Link-Verbot-1108479.html
  16. ^ BGH, October 14, 2010, AZ I ZR 191/08. Commented in: Joerg Heidrich / Maike Brinkert, Sieg für die Pressefreiheit, c't 23/2010, p. 19
  17. ^ LG Karlsruhe, decision of March 23, 2009, Qs 45/09, Rn. 8, full text at Openjur .
  18. ↑ Holocaust denial on the Internet became expensive. Mittelbayerische Zeitung from August 14, 2015
  19. ↑ a b Thomas Stadler: Responsibility for hyperlinks according to the new version of the TDG . ( jurpc.de [accessed on February 8, 2008]).
  20. ↑ Clemens Matthias Waß: Think Before You Link - Responsibility for third-party content to which reference is made via hyperlink . December 2002 (Gerhard Laga, web document on Rechtsprobleme.at [accessed on August 8, 2008]).
  21. ^ OGH, December 19, 2000, reference number 4Ob274 / 00y, keyword: austropersonal.com, jobmonitor, hyperlinks . ( rechtsprobleme.at [accessed on February 8, 2008]). On the problem of this argument cf. Comment on OGH, December 19, 2000, reference number 4 Ob274 / 00 y, jobmonitor.com . ( rechtsprobleme.at [accessed on February 8, 2008]).