Liability
for
Hyperlink.
Liability
for
Hyperlink.
from
Hyperlinks, or links for short, are an essential part of the Internet as we know it. Most websites contain numerous links that lead the user to other websites. But can such a hyperlink constitute an infringement of competition law and, if so, under what conditions?
Advertising for acupuncture
In 2012, an orthopaedic specialist, who also offers alternative medical treatment methods in his practice, advertised a form of treatment on his website under the heading “Implant acupuncture”, in which tiny needles are implanted subcutaneously at acupuncture points in the area of the auricle. At the end of the text, after the announcement “Further information, including information on the study situation, can be found at …”, there was a link to the website of a research association for implant acupuncture.
The subpages of this website contained statements on the area of application and the effect of the therapy. A competition association considered the statements made there to be misleading and claimed injunctive relief against the doctor.
The Verband Sozialer Wettbewerb e.V. considered this to be misleading and took action against the doctor because of the link.
Decision of the Federal Court of Justice on liability for a hyperlink
The Federal Court of Justice (Judgment of 18.06.2015 – Ref. I ZR 74/14 ) denied the claims for injunctive relief asserted against the doctor and thus confirmed the lower court.
Anyone who appropriates third-party information via a hyperlink is liable for it in the same way as for their own information. According to the judges of the Federal Court of Justice, the link provider could therefore be held liable if he violates reasonable obligations to check.
In the present case, however, the doctor had not made the linked content his own in such a way that the linked content was attributed to him. The hyperlink is neither an essential part of the doctor’s business model, nor does it openly or covertly advertise the doctor’s products or supplement the doctor’s treatment offer. Nor was a deep link set in the present case, but rather a link to the homepage.
Nor had the doctor breached any monitoring obligations that could lead to liability for the hyperlink. In this respect, there is no proactive monitoring obligation for hyperlinks. If infringing content is not clearly recognizable, liability can therefore only be considered from the time of knowledge of the illegality of the linked content.
As the doctor had removed the link immediately after the cease and desist letter, the doctor could not be held liable.
Conclusion
According to the Federal Court of Justice, liability for links only comes into consideration if you make the content your own or if the content you link to is clearly illegal. Otherwise, it is sufficient to remove the hyperlink with knowledge of the illegality, e.g. through the cease and desist letter.
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