District Court of Stuttgart, June 27, 2014, Case No.: 11 O 51/14
Please note: The TMG (Telemedia Act) has been replaced by the DDG (Digital Services Act). However, the decision is likely still relevant in content. You can find an overview here. Please note: The TMG has been replaced by the DDG, but the decision likely remains relevant. An overview can be found here.
If a website operator is issued a warning for an incorrect legal notice („Impressum“) on the internet, they can take action against the warning party by filing a so-called „negative declaratory action“ to have the court determine that the warning was unjustified.
A negative declaratory counterclaim is admissible whenever there is a legal interest in promptly determining the non-existence of a legal relationship, especially if a party’s legal position is suffering from current uncertainty, which can be resolved by a declaratory judgment.
In the ruling presented here by the District Court of Stuttgart, the court had to decide on a negative declaratory action filed by an attorney who had been warned by another attorney for having a missing or incorrect legal notice on the platform XING.
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Facts of the Court Case
Background of the Dispute
Beide Parteien, der Kläger und der Beklagte, sind als Rechtsanwälte tätig. Der Kläger führte auf der Plattform XING Both the plaintiff and the defendant are practicing attorneys. The plaintiff maintained a profile on XING that included a link labeled „Legal Notice of …“. By clicking this link, users were directed to the website of the plaintiff’s law firm, where the required information under § 5 of the Telemedia Act (TMG) could be found.
On February 12, 2014, the defendant issued a warning to the plaintiff for allegedly violating § 5 TMG, claiming that the plaintiff did not provide a legal notice on his XING profile. The warning included a cease-and-desist declaration that would require the plaintiff to ensure that a legal notice was provided in the future.
Plaintiff’s Response: Negative Declaratory Action
Der Kläger reichte eine negative Feststellungsklage The plaintiff filed a negative declaratory action, seeking a court ruling that the defendant had no claim to enforce the cease-and-desist request concerning the missing legal notice on the XING profile. The defendant, in turn, obtained a preliminary injunction from the District Court of Stuttgart (Case No.: 11 O 101/14), obligating the plaintiff to provide the required legal notice under § 5 TMG on his XING profile.
Decision of the District Court of Stuttgart
The District Court of Stuttgart ruled that the plaintiff’s declaratory action was only partially justified.
Claim for Cease and Desist of the Specific Violation
The court found that the plaintiff had violated § 5(1) Nos. 5 and 6 TMG. Both parties were attorneys and therefore competitors under § 8(3) No. 1 of the German Unfair Competition Act (UWG). The plaintiff had violated market conduct rules by having an incomplete legal notice on XING, which created a risk of repetition, justifying a cease-and-desist claim.
Obligation for Provider Identification
The plaintiff had not provided all the required information under § 5 TMG on his XING profile. Specifically, details about the bar association, the professional title, the applicable professional regulations, and the VAT identification number were missing. The court determined that the legal notice on the plaintiff’s law firm website was not sufficiently visible and, therefore, did not meet the „easily recognizable“ requirement under § 5 TMG.
No Obligation to Provide a Complete Legal Notice
However, the court ruled that the plaintiff was not obligated to provide a full legal notice directly on his XING profile. Since the plaintiff’s profile contained at least partial provider identification, there was no risk of repetition regarding the operation of telemedia without any legal notice at all.
Summary of the Decision
The District Court of Stuttgart concluded that the plaintiff had failed to provide complete and easily recognizable information under § 5 TMG on his XING profile. A cease-and-desist claim concerning this specific violation was justified. However, the defendant had no claim to enforce a cease-and-desist declaration for the complete absence of a legal notice.
Source: District Court of Stuttgart
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