Author: Kurt Schauer
So that you do not fall into the warning-letter trap in the thicket of the latest data protection guidelines, image rights and imprint regulations, we have compiled the four most important points:
1. Imprint Obligation
The users of your website should, of course, know who they are dealing with.
Violations of the impressum requirement are one of the classic reasons for warnings on the internet. Yet, it is very easy to create a complete impressum and integrate it correctly into your own website.
An impressum is, in principle, nothing more than an „provider identification“. According to § 5 TMG (Telemedia Act), private websites are generally exempt from the impressum requirement, and only shops – i.e., websites that offer goods for money – are subject to it.
However, jurisprudence is not entirely in agreement here. This is because §55 of the Rundfunkstaatsvertrag (RstV – Interstate Broadcasting Treaty) also includes private websites that regularly publish journalistic and editorially designed content online in the impressum requirement.
This is because they contribute to public opinion-forming. However, it has not been conclusively clarified legally whether, for example, bloggers also fall under this regulation.
Whether a website is private or commercial has been handled very strictly by jurisprudence in the past. Thus, an advertising banner or participation in an affiliate program is already to be considered a commercial activity and is therefore directly subject to the impressum requirement. So, anyone who runs advertising banners or partner programs on their site should definitely include an impressum. This also applies if no or minimal revenues are generated from the advertising.
In summary, regarding the impressum requirement, it is generally advisable for website operators to set up an impressum to avoid legal disputes.
An online impressum generator from e-Recht24.de offers assistance.
2. The Privacy Policy
As soon as you collect personal data on your website, for example via a contact or order form, you must clarify in a privacy policy what data is collected, for what purpose, and to whom this data may be transmitted.
If you operate an online shop, we recommend that you seek legal advice from a lawyer, as a significantly more extensive privacy policy is necessary here. Data collected via tracking tools such as Google Analytics, etracker & Co can also be considered personal data according to the data protection authorities. Furthermore, the encryption of data transmission also plays a central role in data protection. As soon as personal data is exchanged in any form, an SSL encryption of the website must be set up to ensure the highest possible security.
Attention:
Website operators who do not present Google Analytics, or present it incompletely, in their privacy policy are currently receiving numerous warnings. There is a current case from the LG Hamburg on this matter. To legally use Google Analytics, the following points must be observed:
- Conclude a contract for commissioned data processing
- Integrate IP anonymization
- Update the privacy policy
- Set opt-out cookies + link to browser plug-in
Website operators who wish to use Google Analytics according to the data protectionists‘ requirements must conclude a written 18-page contract with Google on so-called „commissioned data processing“ in accordance with § 13 BDSG.
You can download and use the sample contract for commissioned data processing developed by Google and the data protectionists here:
www.google.com/analytics/terms/de.pdf
The contract must be concluded in writing and sent to Google by post in a self-addressed, stamped envelope.
The address is:
Contract Administration Department
Google Ireland Ltd
Gordon House Barrow Street Dublin 4
Ireland
After a few weeks (or months), you will receive a countersigned copy back. Website operators should also conclude a contract for commissioned data processing with Google for Google Universal Analytics. However, this has not yet been adapted to Universal Analytics.
A checklist for the legally compliant use of Google Analytics can be found here.
A brief list of the points that must be regulated in your privacy policy:
- Storage of IP addresses, server logs
- Analysis tools such as Google Analytics, piwik or etracker
- Plugins from sites like Facebook, Twitter, Instagram, Pinterest or Google+
- User data from contact forms
- User data from newsletter subscriptions
- Advertising networks such as Google AdSense or Amazon Partner Programs
- User registrations and comment functions
- Notice of the right to object, block or delete
You can have a free privacy policy created by e-recht24.
3. Texts, Images, and Videos
Most people should now be aware that you are not permitted to simply publish texts, images, or videos from third parties on your own website via copy & paste.
Should you still wish to publish certain content on your own site, you must ensure that you have the appropriate usage rights for all published content and inquire with the rights holder whether you are permitted to publish the content.
Most people, especially for images, therefore use so-called stock photo providers such as fotolia,pixelio.de or istockphotos.com.
What is often not given enough attention at this point, however, is the fact that the use of these images is also subject to the terms of use of the stock photo platforms. Here too, the photographer must usually be named under the photo; if this is omitted, it can also lead to expensive warning letters.
A detailed guide to the legally compliant use of images on blogs and websites is also available at e-recht24.de.
4. Advertising & Affiliate Partner Programs
Bloggers in particular like to use various advertising tools on their platform to generate „passive income“. So-called „affiliate programs“ have also become very popular – here, either a variable or fixed fee is agreed upon with the business partner.
It is important to note:
Advertising, even in blog posts, must be identified as such. This means that if a blog post specifically links to a company’s website to improve search engine results and the affiliate receives a commission for this click action, this must be clearly and visibly marked as such. Otherwise, expensive warnings may be issued.
Generally, the following advertising methods are distinguished:
- Banner advertising
- Product tests
- Paid blog posts / text links
In plain text, this means that in every blog post there must be a clear and obvious separation for the reader between the existing editorial content („blog posts“) and the advertising content. For example, marked by the words „Werbung“ (Advertising) or „Anzeige“ (Advertisement) or a clear notice in the footer that the links in the blog post are affiliate links from which the website operator receives a commission.
In summary, for private websites, E-recht24.de offers a quick and free „Warning-letter check“ (warning check), which we can only recommend.
For commercially operated online shops, one should not shy away from incurring legal costs, as jurisprudence in online retail in particular quickly becomes complex and opaque for the layman, and mistakes unfortunately usually become expensive.
Do you have questions?
Eliana Gramer
Head of Web/Digital
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