Why a violation of the imprint obligation carries fatal consequences

Author: Kurt Schauer

Companies and private individuals who use their websites commercially and make them publicly accessible are subject to the imprint obligation. Violations due to incomplete or incorrect information can have legal consequences and be punished with fines of up to 50,000 euros. Creating a legally compliant imprint is complex and can lead to challenges without appropriate experience, which is why professional support is advisable. Even the smallest deviations or missing information give competitors the opportunity to initiate legal action against you. Which information must be included in the imprint fundamentally depends on the legal form of your company and can vary greatly.

The Imprint Obligation for Businesses Using Telemedia Commercially

The general obligation to provide information, also known as the imprint obligation, requires service providers in accordance with §5 of the Telemedia Act to „keep information for commercial telemedia, generally offered for a fee […] easily recognizable, directly accessible and permanently available.“ This is followed by a list of numerous legally relevant details about your company that may seem overwhelming at first glance. To make the complex creation easier for you, we will provide you with comprehensive information in the following article about the relevant content, the underlying obligations as well as the correct presentation and placement on your website. Incomplete information harbors legal risks that can lead to warnings or legal disputes for you as the owner. This obligation applies not only to your company website but also to social media platforms such as Facebook, Twitter, Instagram, LinkedIn, XING or Snapchat.

Source: freepik.com

What is an Impressum?

The Impressum comprises the legally required information of the party legally responsible for the content of a website on which text or image contributions are published. This applies to content that does not exclusively serve private purposes and is made available on websites or social media platforms. The Impressum obligation aims to ensure that users of the content have a contact person and can verify the seriousness of the offering. Furthermore, it enables direct contact in cases of copyright infringement or similar legal matters.

Originally, this information was intended to inform the reader about the author of a printed text, as was the case with books and newspapers, for example. With the advent of the internet as a mass medium in the 1990s and the increasing availability of information and services in electronic media, the Telemedia Act was introduced in 2007. This law regulates the obligation to identify the authors of online content.

Who must create an imprint?

The German Telemedia Act (TMG) obliges owners of commercially used internet presences to provide comprehensive information about themselves or their company (§5 TMG). The general provision defining who is affected by the imprint obligation is set out in the first paragraph of §1 TMG. Below, we provide an exemplary overview of which types of services and commercial activities are affected:

Service providers
Online shops
Promotional emails
Database services
Journalistic websites
Communication websites

Essentially, the imprint obligation applies to all commercially used websites that are publicly accessible and not password-protected. The service provider can be either a natural or a legal person. Excluded from the imprint obligation are private content such as family websites or non-commercial blogs that do not serve commercial purposes.

Where must the legal notice be integrated on the website?

According to the German Telemedia Act, the impressum must be „easily recognizable, directly accessible, and constantly available.“ In Germany, it is important that it can be reached from any page of the website with a maximum of two clicks. Although some websites place the impressum at the bottom of the page, which requires annoying scrolling, it is recommended to place it in its own navigation tab at the top of the screen, which remains visible even when scrolling.

What is the difference from the privacy policy?

The privacy policy can in no way replace the imprint. The imprint contains information about the website operator and allows users to identify the responsible party and make contact. The privacy policy, on the other hand, informs about the handling of user data and should be listed separately, ideally on its own subpage.

Commercial emails and advertising emails must contain a legal notice

Marketing emails and all commercial communications also require the inclusion of your imprint details. These should be displayed in a text field identical to the information you have listed on your website.

Reference to the EU dispute resolution platform

The Munich Higher Regional Court ruled in 2016 that the owner’s duty to inform regarding the EU dispute resolution platform must also include providing a functional link to this platform (Online Dispute Resolution).

Which information is mandatory?

The Telemedia Act lists in Section 5 the mandatory information that must be part of the legally binding content:

Natural persons are obliged to provide their first and last names. In the case of a company, its full name including the legal form must be stated.

For legal forms such as GbR and OHG, the authorized representative partner must also be stated. For GmbHs, the managing director must be stated, and for stock corporations, the names of the board members must be provided.

In addition, a complete address where service of process is possible or the registered office of the company must be provided. A P.O. box is not sufficient for this purpose. Providing an email address and telephone number is also mandatory.

Optionally, a contact form can be offered. It is important that you as the operator can be reached and able to respond via the specified means of communication within 60 minutes.

The VAT identification number must be provided if one has been assigned.
If you offer services on your website as part of your professional activity, you are also obliged to state your statutory professional title, the professional regulations, and the competent chamber.

Professional groups that are subject to a supervisory authority are obliged to provide its name and address.

If the company or association is entered in a register of associations, commercial register, partnership register, or cooperative register, the corresponding register number must also be provided.

The legal notice must always be kept up to date. In the event of changes, such as a change of managing director or a new address, the legal notice must be updated without delay.

Does this law also apply to social media platforms?

The commercial use of social media platforms is also subject to the requirements of the TMG. If your company uses a web presence on platforms such as LinkedIn or Facebook for customer acquisition or for business-to-business activities, you are obliged to provide the relevant information either as full text directly on your profile page or to provide a direct link to your legal notice on the website. Make sure that the link is easy to find and clearly visible. You can achieve this either through a clear reference (e.g. „Legal notice at meinunternehmen.de“) or through so-called „speaking links“ that contain the direct entry in the web address (meinunternehmen.de/Impressum).

The Legal Consequences of Violations of the Applicable Telemedia Act

With the increasing popularity of the internet, cease-and-desist letters have also increased sharply. Competitors can sue for unfair competition if the legal notice obligation is disregarded. A cease-and-desist letter with a declaration to cease and desist, up to and including court proceedings, can reach amounts in dispute of up to 5,000 euros. In addition, authorities can impose fines of up to 50,000 euros pursuant to Section 16 of the Telemedia Act.

Where do companies get a legally compliant imprint?

The internet offers numerous options for the automated creation of a legal notice using generators that are based on querying relevant data. Since the required information can vary greatly depending on the company and missing content can lead to legal consequences, we advise against using such tools. Instead, we at KAOS Werbeagentur offer you individual creation by our competent employees.

The correct presentation format of an imprint using an example

The following sample of a GmbH shows you how a correct presentation according to the German Telemedia Act can look:

Mustermeister GmbH
Musterstraße 74
12345 Musterstadt
Musterland

Phone: +49 78 123456
Fax: +49 78 123456
Email: kontakt@mustermeister.com
Internet: www.mustermeister.de

Authorized Managing Director: Max Mustermann

Registration number: HRB 1234
Registry court: HR Musterstadt

Value Added Tax Identification Number according to § 27a Value Added Tax Act: DE 1234567890

EU Commission platform for online dispute resolution: https://ec.europa.eu/consumers/odr
The seller is neither obliged nor willing to participate in a dispute resolution procedure before an alternative dispute resolution body.

Conclusion

An imprint is indispensable today for almost anyone who publishes a website – whether you operate an online shop or manage a professional social media account. It should always contain the address and name of the company, as well as contact details and the legal form. Furthermore, it is important to regularly check the timeliness of this information, as even outdated information can lead to warnings.

We at KAOS are happy to advise you and create a legally compliant imprint so that you do not have to fear any warnings. Thanks to our years of experience, we know exactly what information is relevant for your company.

Do you have questions?

Eliana Gramer

Head of Web/Digital