Apr 2016

When am I liable for the content of external and linked websites?

The notice "any and all liability which might arise from the use of, or reliance on the accuracy of, links is excluded" has now come to be regarded – in its various forms – as standard. But website operators are using it to offload the responsibility for hyperlinks to external web presences. Using this notice is no guarantee of getting off the hook, though, as was once again clearly highlighted by the Federal Court of Justice (BGH) in the course of a recent judgement (BGH, judgement of 18.06.2015, I ZR 74/14).

The Federal Court of Justice states that a legal obligation to check the external internet content could result based on the overall context "in which the hyperlink is used, the purpose of the hyperlink as well as on the basis of the knowledge the person posting the link has indicating that the website, or the web presence to which the link leads, serves unlawful conduct, and the opportunities available to the same to reasonably detect the illegality of this conduct." Liability for a posted link therefore requires the person posting the link to have gained awareness - from a third party tip-off for instance - of the unlawful content accessible via this link. However, the indication alone will suffice, it need not be an obvious legal violation.

Recommended action:

In practice this means that posting hyperlinks is, generally speaking, still permitted. The link poster need not initially launch into an in-depth examination – at least in the course of posting a link to a generally accessible third-party web presence – of the legality of the content therein. If, however, there is an indication from a third-party of alleged unlawful content in a linked external web presence, the poster is under obligation to check the content for legality. If the poster should fail to do this or to do so properly, the same shall be held liable for the external content as well as for its own web presence. With this in mind, anyone confronted with any indication of alleged unlawful content in linked web pages would do well to simply remove the links.

Dr. Robert Kazemi

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