Why a violation of the imprint obligation has fatal consequences

Author Kurt Schauer

Companies and private individuals who use their websites commercially and make them publicly accessible are subject to the imprint requirement. 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 the appropriate experience, which is why professional support is advisable. Even the smallest deviations or missing information give competitors the opportunity to take legal action against you. What information must be included in the imprint depends fundamentally on the legal form of your company and can vary greatly.

The imprint obligation for companies when using telemedia commercially

The general obligation to provide information, also known as the imprint obligation, obliges service providers in accordance with Section 5 of the Telemedia Act to "keep information easily recognizable, immediately accessible and constantly available for commercial telemedia, usually offered for a fee." This is followed by a list of numerous legally relevant details about your company, which can seem overwhelming at first glance. To make the complex creation easier for you, in the following article we will provide you with comprehensive information about the relevant content, the underlying obligations and the correct presentation and placement on your website. Incomplete information poses legal risks that can lead to warnings or legal disputes for you as the owner. In addition to your company website, this obligation also applies to social media platforms such as Facebook, Twitter, Instagram, LinkedIn, XING or Snapchat.

Source: freepik.com

What is an imprint?

The imprint includes the legally required information of the person legally responsible for the content of a website on which text or image contributions are published. This applies to content that is not exclusively for private purposes and is made available on websites or social media platforms. The imprint requirement is intended to ensure that users of the content have a contact person and can check the seriousness of the offer. It also enables direct contact in the event of copyright infringements 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 emergence 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 has to create an imprint?

The Telemedia Act (TMG) requires owners of commercially used websites to provide comprehensive information about themselves or their company (§5 TMG). The general determination of who is affected by the imprint obligation is defined in the first paragraph of §1 TMG. Below we offer an example overview of the types of services and commercial activities affected:

Service
Online Stores
Promotional emails
database services
journalistic websites
communication websites

Basically, the imprint requirement applies to all commercially used websites that are publicly accessible and not protected by a password. The service provider can be either a natural or a legal person. Private content such as family websites or non-commercial blogs that are not used for commercial purposes are exempt from the imprint requirement.

Where must the imprint be integrated on the website?

According to the Telemedia Act, the imprint must be "easily recognizable, immediately accessible and constantly available". In Germany, it is important that it can be reached from every page of the website with a maximum of two clicks. Although some websites place the imprint at the bottom of the page, which requires annoying scrolling, it is recommended to place it in a separate navigation tab at the top of the screen, which always remains visible even when scrolling.

What is the difference to the privacy policy?

The privacy policy cannot replace the imprint under any circumstances. The imprint contains information about the operator of the website and enables users to identify the person responsible and to contact them. The privacy policy, on the other hand, provides information about how user data is handled and should be listed separately, ideally on its own subpage.

Commercial emails and advertising emails must contain an imprint

Marketing emails and any commercial communication also require you to include your legal information. This should be presented in a text box that is 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 obligation to provide information regarding the EU dispute resolution platform must also include the provision of a functional link to this platform (Online Dispute Resolution).

Which information is mandatory?

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

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

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

In addition, a complete address for service of summons or the company's registered office must be provided. A PO box is not sufficient for this. An email address and telephone number are also required.

A contact form can be offered optionally. It is important that you as the operator can be reached and respond within 60 minutes using the specified means of communication.

The VAT identification number must be stated if one has been assigned.
If you offer services on your website as part of your professional activities, you are also required to provide your legal job title, professional regulations and the relevant chamber.

Professional groups that are subject to a supervisory authority are obliged to state this authority and its address.

If the company or association is registered in an association, commercial, partnership or cooperative register, the corresponding registration number must also be stated.

The imprint must always be kept up to date. In the event of changes, such as a change of managing director or a new address, the imprint must be updated immediately.

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 website on platforms such as LinkedIn or Facebook to acquire customers 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 imprint 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. "Imprint at mycompany.de") or through so-called "speaking links" that contain the direct entry in the web address (mycompany.de/Imprint).

The legal consequences of violations of the applicable Telemedia Act

With the increasing popularity of the Internet, the number of warnings has also increased significantly. Competitors can sue for violations of competition law if the imprint requirement is not observed. A warning with a cease-and-desist declaration and even legal proceedings can result in claims of up to 5.000 euros. In addition, authorities can impose fines of up to 16 euros in accordance with Section 50.000 of the Telemedia Act.

Where can companies get a legally binding imprint?

The Internet offers numerous options for the automatic creation of an imprint using generators that are based on the query of relevant data. Since the information required can vary greatly depending on the company and missing content can lead to legal consequences, we advise against using such tools. Instead, we at the KAOS advertising agency offer you individual creation by our competent employees.

The correct form of presentation of an imprint using an example

The following example of a GmbH shows you what a correct representation according to the Telemedia Act can look like:

Mustermeister GmbH
Pattern street 74
12345 Musterstadt
model country

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
Register Court: HR Musterstadt

VAT identification number according to Section 27a of the Sales Tax Law: DE 1234567890

Platform of the European Commission 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

Today, an imprint is indispensable for almost everyone who publishes a website - regardless of whether you run an online shop or have a professional social media account. In any case, it should contain the address and name of the company as well as the contact details and legal form. It is also important to regularly check that this information is up to date, 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 worry about warnings. Thanks to our years of experience, we know exactly which information is relevant for your company.

Any questions?

Eliana Gramer

Head of Web/Digital