Are Disclaimers for Links and Content on the Website Legally Effective?
Disclaimers, often referred to as "disclaimers" for links and content on your own site, should be used sparingly, if at all. The following points should be considered:
External Links
An often-cited ruling by the Hamburg Regional Court from May 12, 1998 (Az. 312 O 85/98) is frequently mentioned in relation to the use of external links, suggesting that a disclaimer is necessary for distancing oneself. However, the ruling states the exact opposite: a disclaimer alone is not sufficient to distance oneself from external links. Therefore, a statement like "No liability for external links" is ineffective. If the website operator becomes aware of illegal content to which they have linked, they must remove the relevant link immediately. According to the case law of the Munich Higher Regional Court, the website operator has a duty to check if they set and maintain links (Judgment of April 29, 2008 – 18 U 5646/07).
Disclaimers for Accuracy and Timeliness
Disclaimers that exclude liability for the accuracy and timeliness of the provided information should also not be used. First, this can be seen as a general terms and conditions clause within the meaning of §§ 305 ff. BGB, as the liability exclusion applies to a variety of contracts concluded via the website (for consumer transactions, even a single use is sufficient). Additionally, the use of such disclaimers is highly problematic because the Hamburg Higher Regional Court (Decision of December 10, 2012 – 5 W 118/12) views such statements as a blanket liability exclusion for the operator's own offered products.
Disclaimers Regarding Cost Bearing
Disclaimers relating to cost bearing, such as stating that a warning without prior contact leads to the exclusion of the assumption of warning costs, are also ineffective. They neither prevent warnings nor affect a statutory cost reimbursement claim. Such a regulation can lead to a situation where, if you issue a warning yourself, you cannot claim corresponding costs, as the Hamm Higher Regional Court (Az. I – 4 U 169/11) considers it a breach of good faith to apply different standards for warnings affecting oneself or others.
Disclaimers for Copyright of Own Content
Disclaimers meant to protect the copyright of one's own content are both unnecessary and potentially a source of legal warnings themselves. Copyright for one's content is established not by a disclaimer but by § 7 UrhG at the moment of the work's creation (e.g., taking a photo or writing a text). For short, purely informational texts that do not reach the level of a work's creative height as per the Copyright Act, a disclaimer changes nothing and is therefore unnecessary. It can even be problematic if it suggests that the website operator holds the copyright to all content published on the website. For instance, if stock photos from stock photo archives are used, the copyright usually does not belong to the website operator but rather they are permitted to use the images.
Disclaimers with No Serious Benefit
In summary, disclaimers do not provide a serious benefit and even pose some risks. The fact is: as soon as an entrepreneur becomes aware of a legal violation, such as a copyright infringement on their website and does not promptly rectify it, a pre-formulated disclaimer does not offer protection. Therefore, one's own content and external links to other websites should be carefully checked and promptly removed upon awareness of a legal violation.
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