Munich, 14.9.2005. Anyone who is working in the e-commerce area must observe a huge range or regulations on Internet law. For example, in Internet trade, distance sales law can be invoked, which is regulated in the German Civil Code (BGB) and in the BGB-Information Obligation Regulation (BGB-InfoV). The Teleservices Law (Teledienstegesetz) and the data protection provisions such as the Teleservices Data Protection Law (Teledienstedatenschutzgesetz) can also play a role.
The provisions in the BGB as well as those in the BGB-InfoV have recently been amended by the Law to Amend the Provisions on Distance Financial Services Contracts (FernAbsVtrÄndG). This amendment has added a further layer of information requirements to an already extensive list.
Unfortunately it is often forgotten that distance sales law is not only applicable to the classical Internet mail-order trade. This also covers services which might not initially be associated with e-commerce, e.g., providers of online games are also subject to the extensive information requirements. Even some lawyers seem to forget that they are not only bound by the regulations covering the legal profession but – where they provide Internet legal consultation – they are also bound by distance sales law (for further information, see Schöttle, Zur Bedeutung des neuen Fernabsatzrechts für die Anwaltshomepage, (the importance of distance sales law for the lawyer’s homepage) NJW 2004, p. 1979 ff.).
Anyone who provides online games must also display a provider identification (Anbieterkennzeichnung, similar to an „Impressum“ – legal information and contact details).
In addition, extensive legal information on distance contracts must also be given to the player on registration as well as while playing online games. Since the latest amendment gaming providers who run gaming accounts are advised to be particularly careful: This can constitute
a financial service such that special regulations would be applicable to it.
Data protection also plays a role. In some cases, it is not just a data protection statement which must be provided – user consent is required in order to take certain data.
Even where the provisions do not initially seem particularly important – if they are not implemented, it can become expensive for the provider. In certain cases, a fine of up to 50,000 Euro can be imposed (see Art. 12 TDG, Art. 9 TDDSG). There is, however, a far greater risk of a law suit (civil law proceedings brought by competitors). Stefan Münz, author of Selfhtml, the best-known German HTML-compendium, considers the situation to be fairly drastic (http://de.selfhtml.org/projekt/recht.htm):
„First to come onto the web were the idealists, then the buyers, and finally the lawyers. What was initially a paradise for freaks then became a paradise for investors and ultimately a paradise for the eager mass mailing of standard letters. The motto was „clean-up through law suits“ […]“
With the introduction of extensive information requirements in the Teleservices Law coupled with the simple research methods available, some providers have been subject to costly penalties. This is because an incorrect application of the regulations is fairly easy to discover: If certain obligatory information is missing from the website or is difficult to find, this is often classified as a breach and sufficient grounds for a law suit. In the meantime, the targeted examination of websites for legal infringements has become daily news. In 2003 the online news service Heise reported on mass law suits in the gambling area (http://www.heise.de/newsticker/meldung/34486).
Caution: Many of the Internet legal requirements also apply to foreign providers. It is not always necessary that the online provider is based in Germany; sometimes it is sufficient that a foreign provider targets the German market with their services.
Conclusion: Anyone who exposes themselves to legal attack through a flawed website must expect to be caught sooner or later.