If a commercial website is linked to third parties’ pages containing misleading statements or otherwise breaching unfair competition law, the question of liability of the person having set the link for the illegal third parties’ contents arises. The Federal Court of Justice has delivered a landmark decision on this issue (of 18/6/2015 – I ZR 74/14 – Haftung für Hyperlink).
According to this judgment, the programmer of the link shall be held liable if the link appears in such a way that it gives the impression that the programmer has adopted the linked contents as his own. In the case at hand, this was found not to be the case. However, to arrive at this conclusion, the court needed a comprehensive consideration of all circumstances of the case. In order to avoid the legal uncertainty associated with such a complex assessment, it seems recommendable placing a distancing statement in close vicinity to the link.
However, as the Federal Court of Justice went on, a liability may be found even without such “adoption as own contents” (and thus in spite of a distancing statement) because each link contributes to the distribution of the illegal contents in the web. In order to avoid, on the other hand, an inadequate restraint for the dissemination of information, such a liability shall not occur automatically, but only if the programmer of the link failed to comply with reasonable obligations to check the linked contents on breaches of law. In the case of clearly recognizable breaches, liability must be reckoned with from the outset, otherwise normally only after the programmer has, e.g. by a warning letter, obtained knowledge about the illegality. In the latter case, the link must, of course, be deleted immediately to avoid liability.