Defence of Facebook warnings
It was obvious that the operators of commercial social media appearances would be affected due to lack of warnings or incorrect information-imprint. Especially Facebook performances offer here some working surfaces. The extent seen first major warning wave has now brought the company Binary Services GmbH from Regenstauf rolling. Their managing director Florian Blischke brought it in the recent past in the context of file-sharing warnings to some notoriety. Sent represented by Hans-Werner Kallert the company similarly worded antitrust warnings to operators of commercial Facebook pages that contain no imprint. Along with the warning received Affected solicitation of a boilerplate criminal act and declaration of a cost accounting of the firm in the amount of 265.70 euros.
To what extent such a warning is, in principle, depends on many factors and can therefore only individual case to determine exactly. It is clear that each not only purely private use Facebook page must contain a page for visitors easily accessible imprint. So if you do not imprint on his commercial Facebook page, should rectify quickly. Detailed information on Legal and patterns can be found on the Internet.
The imprint must be on the Facebook page but not only exist, but for the visitor to be found easily. In the current warnings is lifted to a judgment of the LG Aschaffenburg on 19/08/2011 (ref. 2 HK O 54/11). This was judged according to the TMG (German Telemedia Act) that the imprint-mandatory information must be easily and effectively visually perceptible. You must be discoverable without having to search. Therefore already subject to the term "information" a violation of § 5 TMG. In addition, should also be clear on what the imprint refers Telemedia. (BGH) has, however, already with a judgment of 20.07.2006 (Case No.: I ZR 228/03) decided that specifying a provider identification is sufficient for a website, when "this without having to search through two links and the terms Contact "and" Imprint "is reachable. Why in this context the term "information" for the imprint, information should not be sufficient, remains the secret of the LG Aschaffenburg. But the judgment of the LG Aschaffenburg in the world, and within the limits of what is permissible in unfair competition disputes over jurisdiction of the websites can be freely selected from Abmahner.
In order to accommodate the imprint holds under the tab "Info" is currently a certain danger. Anyone who has received a warning because of the alleged lack of imprint, but this under "Info" is available should each other advice for a lawyer specializing in intellectual property law. This then helps in the assessment of individual risk. The cost of such a defense depend largely on underlying dispute. The current in the warnings is believed a dispute value of 3000 euros.
There is some evidence that this is excessive. So the Celle Court recently the dispute for interlocutory injunction proceedings for violations of § 5 TMG 2000 Euro set (judgment 14.06.2011, Az. 13 U 50/11) for the main action, the court an argument worth 3000 Euros as appropriate at. In the references cited in the judgment of the LG Aschaffenburg warnings assumes a value in dispute of 2000 euros. The LG casting recently in a similar case (Decision of 01.12.2011, Case No.: 8 O 74/11) also set a dispute of 2000 euros. So there is much to be here to accept only a dispute of 2000 euros. It is not excluded that in other jurisdictions significantly higher values underlying dispute located.
The risk of litigation costs in an argument is worth 3000 Euros for the first instance at about 1440 Euro and a dispute of 2000 euros at around 1060 euro. For other values in dispute, a look at the process cost calculator.
The problem is the resistance when the imprint in the Facebook Timeline "hidden". Here to talk about the legal requirements of easy accessibility already requires a lot of imagination, because of the entry, over time more and more gradually dropping and so after a short time is not discoverable or visible without scrolling long. Also, the "pinning" of the imprint at the front position of the timeline does not work against warnings, because the imprint entry here after a week moves down.
It is safer to Facebook at the moment when the imprint is in a separate, newly created tab named "Contacts" accommodating. That alone is not, however, because at the moment the indication of the imprint-rider in the manner provided for mobile devices Facebook-view is not technically possible at m.facebook.com. In this view, only the Info tab is accessible. To act on the requirements of § 5 TMG sequence required under the TMG must say both behind a tab named "Contacts" and under an additional "info" tab be kept. So then the current purely actually possible would be implemented in terms of Legal Notice.
Even if the warning "in the matter" appears justified because of Abgemahnte to be warned when actually could show no easily accessible imprint on his commercial Facebook page, that does not mean that the warning is also justified. To admonish commercial, make sure your Abmahnende compete for Abgemahnten. Only if there is a legitimate interest in a caution. The Binary Services GmbH provides Kallert lawyer as "the IT system house with strong added functions" represent actual fact, on the company's website for virtually every conceivable IT-related topics relevant offers and services. Whether it actually includes spending in the areas listed are achieved, would clarify if necessary, the courts. A response to the request from H to sample projects Blischke was guilty. Formally, the expected on the website extremely wide range of products and services presented but sufficient to establish a competitive relation with many companies active on Facebook. Nevertheless, an examination by a specialist lawyer to pay off well here, when the trade of Abgemahnten content far enough from the specified range of activities of the binary Services GmbH away.
The enforcement of competition law injunctive relief is also not allowed if they improperly taking into account all circumstances. This is especially true when it serves mainly to arise against the offender is entitled to compensation for expenses or costs of prosecution can. Any party will probably say here immediately, just as it is. However, the legislature has set a successful misuse defense pretty high hurdles. However, the systematic thinning of the internet, considering possible antitrust violations by the Abmahnenden be an indication of a very abusive reliance for revenue. Case collections can help to convince the court that it just is not about stopping an infringement of competition, but the cost of production.
The same applies if the Abmahntätigkeit a competitor out of proportion to its existing commercial or professional activities. The abusive reliance on § 8 paragraph 4 of the UWG concerns the litigation authority and thus a prerequisite process. You must be tested at each stage of the proceedings of its own motion. Here Abmahnpraxis in regard to these cases will be to watch. It is not unlikely that some of the cost risk Abgemahnte not be shy and courts to clarify whether there is here a Rechtsmissbräuchlichkeit.
If you have received a legitimate warning, it is important to keep the potential damage to a minimum. Therefore, do not sign the pre-formulated especially premature failure of the undertaking Abmahner. In the present a pre-failure warnings relevant undertaking is annexed, which will undertake the Abgemahnten to pay for any future violation of 3000 euros Binary Services. Moreover, the proposed explanation very far-reaching and detrimental to Abgemahnten formulated. After that, should the receiver "for each violation, and the exclusion of the plea of continuing relationship" commit to refrain from it in the future, "an underlying noisy TMG the provider's duty website to entertain without specifying a § 5 TMG corresponding imprint". Furthermore, should the Abgemahnten undertake to pay the costs of using a lawyer Kallert dispute of 3000 euros.
Here lurk the same two cases: First, it is absolutely unnecessary to make a commitment in the declaration of failure to pay the required legal fees. On the other hand refers to the declaration of not only the abgemahnte Facebook page, but to all Internet sites of the individual concerned. Anyone who still maintains other websites obliged to deal with the signature to every time to pay 3000 euros to the Binary Services GmbH, if on any other website or other legal notice requiring social media presence a defective imprint can be found. This can quickly become costly and is hardly avoid later because you have closed with the signature under the pre-declaration a fundamentally legal agreement.
Usually it makes sense for a legitimate warning, issue a modified cease and desist letter, which contains no fixed penalty, but this is at the discretion of the other side and for review by a court. Moreover, should not be given the declaration of a flat rate, but always specifically on the World Wide Web view of the concrete abgemahnten Facebook page refer, or about http://www.facebook.com/IHRE-FACEBOOK-SEITE. Abgemahnte should not commit more than absolutely necessary. With the submission of such a close Unterlassungsverpflichtungserkärung take the opposite side of a lot of wind out of the sails and avoid an expensive process, eg in the context of an injunction. But it is important that the self-worded cease and desist letter is tailored to their specific case and contains a sufficient penalty scheme. , An ideal solution for all cases, it unfortunately does not give here, which is why we recommend a consultation with an experienced lawyer specializing in intellectual property law.
By the submission of punitive desist you lower the value in dispute already enormous, because then it only goes to the rightful abmahnenden attorney costs. Here you can then question about the carrying amounts in dispute of 3000 euros and refuse to pay the costs involved. This dispute then goes to trial, the risk of litigation costs is only around 255 euros. It is not unlikely that the Abmahnern with comparatively so little dispute - it's all now just to the attorney's fees in the amount of 265.70 euros - and the apparent large number of warnings, the motivation is taken to sue at all.
Facebook as a platform operator is fine when it comes to imprint warning letters out: The company needs only to ensure that their own (Facebook) Imprint is easily accessible. For the imprint of individual commercial Facebook pages, however, the respective user is responsible. He can hold harmless with a warning not to Facebook, nor may they make excuses for the fact that Facebook it a suitable solution for the accommodation of the imprint provides.
Of course it would be preferable if Facebook would provide a platform operators here a working both for PCs and mobile device solution. But by law, the company undertakes no obligation. At most, the users themselves could Facebook persuaded to take care of the issue.
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