Disclaimers on websites: Pointless or necessary?

Disclaimers, also known as exclusions of liability, can be found on many websites. They are intended to protect the website operator from legal claims. But are they really useful? In this blog post, we shed light on the legal significance of disclaimers and show why they can be superfluous, if not harmful, in many cases.

Disclaimers on websites have no positive effect

Disclaimers are statements by which the website operator distances itself from certain content or information. They are intended to clarify that the operator assumes no responsibility for the accuracy, completeness or timeliness of the content.

Disclaimers can have different contents, for example:

• Disclaimer of liability: The operator assumes no liability for damages arising from the use of the website.
• Prohibition of warnings: Operators often require third parties to first contact them "free of charge" before issuing a warning.
• Distancing from third-party content: The operator declares that he does not identify with the content of external links that are placed on his website.
• Copyright notice: The operator points out that the contents of the website are protected by copyright.

Lack of inclusion

Disclaimers are general terms and conditions within the meaning of German law. These must be effectively included in a contract. This is already a problem because the disclaimers are usually hidden in the legal notice and are not immediately noticed.

Ineffective disclaimer

Most model disclaimers exclude liability for the content of the website. However, the "content" of a website also includes products sold in an online store, for example. However, an online retailer cannot exclude liability for the description of its products and their accuracy. In the worst case, this clause is considered misleading and can be warned under competition law become.

"None Warning without prior contact"

Many website operators use the disclaimer "No Warning without prior contact". However, this can quickly turn into a boomerang if the operator himself has a Warning would like to pronounce.

Why?

Higher regional courts have ruled that it is contrary to good faith if a warning letter itself Warning costs although he rejects such an approach in his disclaimer.

Specifically:

• The disclaimer suggests that the operator relies on a cost-effective solution in the event of legal infringements.
• If he then demands Warning costsalthough no contact was attempted, this contradicts his own claim.
• Courts consider this to be a breach of § 242 BGB (good faith) and may refuse to reimburse Warning costs refuse.

Judgments:

• The OLG Hamm and OLG Düsseldorf have ruled in several decisions against the reimbursement of Warning costs with a preceding disclaimer "No Warning without contact".
• The Wettbewerbszentrale also issues warnings for disclaimers that violate Section 12 (1) sentence 1 UWG.

Disclaimer for links

The disclaimer "No liability for external links" is often based on a misunderstanding of the judgment of the LG Hamburg of May 12, 1998 (Ref.: 312 O 85/98). However, this ruling makes it clear that a blanket exemption from liability for external links is not permitted. not is possible.

According to the current legal situation, the website operator is only liable for external links if he:

• has knowledge of the infringement through the linking
• the link despite Knowledge not eliminated

Liability also applies without knowledge if the operator refers to a obvious links to an illegal website (e.g. with criminal content). A disclaimer won't help anyway.

Nonsensical disclaimer on copyright

Website operators often use disclaimers to protect their content under copyright law. But are these disclaimers really necessary and useful?

The German Copyright arises automatically with the creation of a work (§ 7 UrhG). A disclaimer is not required for this. A disclaimer can neither "secure" existing copyrights nor establish copyright protection for content that is not worthy of protection.

Disclaimers can be dangerous:

Incorrect information in the disclaimer (e.g. assertion of copyright protection for third-party content) can lead to legal problems lead.

Hands off website disclaimers!

We are often amazed that even lawyers have templates for such pointless disclaimers. Most of the time, it's just about getting a free backlink from the unsuspecting users.

Worse still, disclaimers often even lead to warnings under competition law.

The vast majority of disclaimers are ineffective and offer no legal protection. On the contrary: they can even increase the risk of a warning letter. Web designers and internet agencies are often not legal experts. Do not rely on their advice when it comes to legal issues. We often find that these agencies only want to offer a "special service" and also offer stolen texts from the Internet.

Instead, have a lawyer draw up individual legal texts for you. We will be happy to advise you and create individual terms and conditions and data protection declarations for you. However, you should not expect disclaimers from us.