Legal framework of liability for hyperlinks in Germany
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This article attempts to present the legal framework of liability for Hyperlinks in the German legal system. Being one of the pioneer countries, whose regulations of electronic communication served as example for the European Union's 2000/31/EC E-commerce Directive, it is quite surprising that the problem of liability for hyperlinks still lacks direct regulation. This doesn't mean however, that the issue of liability of persons inserting hyperlinks into their web services poses a problem for German courts. Since the first regulation of electronic communication, adopted in 1997, the practice of legal assessment of hyperlinks has been developed by German doctrine, as well as by the jurisprudence if all instances. The Federal Supreme Tribunal in its 2003 “Paperboy” ruling confirmed the general admissibility of linking as such, both in form of simple links and deep-links. Later on, in 2004, in its “Schöner Wetten“ judgment the Tribunal introduced a procedure for testing particular cases of linking. According to the Tribunal, when assessing the legality of hyperlinks, first to consider is the possibility of so called “appropriation” (sich–zu–eigen–machen) of 3rd party information. In cases of civil liability, when the test for “appropriation” of information falls out negative, courts should continue the assessment with regard to the possibility of “disturber liability” (Störerhaftung) of the ISP, according to section 1004 of the German Civil Code. The German jurisprudence, which has developed a constant approach to hypelinks, constitutes a good example for other national regulators, including the Polish law-maker, who is currently in the process of updating the e-commerce act of 2002.
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