Higher Regional Court Düsseldorf, 18.06.2013, Case No. I-20 U 145/12
Please note: The TMG (Telemedia Act) has been replaced by the DDG (Digital Services Act).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 Please note: The TMG has been replaced by the DDG, but the decision likely remains relevant.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.
When designing internet services, it is essential to ensure that all required information mandated by the Telemedia Act is provided. However, the question arises whether operators of so-called B2B platforms are obligated to ensure that users of the platform provide all necessary information as required by the TMG on the platform itself.
The Higher Regional Court had to decide on this issue in the case discussed here.
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Facts of the Legal Case
Business Activity of the Plaintiff and Role of the Defendant
The plaintiff trades in used road construction equipment and industrial plants. The defendant operates the internet portal „www.b…com,“ where national and international dealers can offer products such as construction machinery, commercial vehicles, spare parts, and accessories for sale. The offers appear as ads that include the product name, price, product description, images, as well as the name and address of the dealer. A direct contract conclusion via the platform is not possible; buyers contact sellers via email, phone, or a contact form. The plaintiff also used the portal until the defendant terminated the contract relationship on 31.12.2010.www.b...com"where national and international dealers can offer products such as construction machinery and commercial vehicles as well as spare parts and accessories for sale. The offers appear in the form of adverts containing the product name, price, a product description, images and the name and address of the dealer. It is not possible to conclude a contract directly via the platform; buyers contact the sellers via email, telephone or a contact form. The plaintiff also used the portal until the defendant terminated the contractual relationship on 31 December 2010.
Warning Issued by the Plaintiff to the Defendant
On 08.12.2010, the plaintiff issued a warning to the defendant, as an offer from the „E. Group“ on the portal lacked information regarding the legal form and legal representatives. The defendant initially did not respond to the warning. When the plaintiff discovered on 13.01.2012 that another offer from the „E. Group“ on the portal was still missing the same information, the plaintiff filed a lawsuit on 17.01.2012.
Plaintiff’s Arguments
The plaintiff argued that the defendant, as the operator of the internet portal, had a duty under competition law. The defendant had to ensure that commercial providers on its platform comply with their legal notice obligations under § 5 TMG to prevent violations of competition law.
Decision of the Regional Court
The Regional Court dismissed the lawsuit. It argued that the defendant was not required to ensure that providers on its portal fulfill their legal notice obligations under § 5 TMG. The court found that the providers were not service providers in the sense of § 2 No. 1 TMG, as they only place ads within a predetermined framework and cannot enter into contracts directly. The court compared this to a newspaper ad and did not see an extended obligation on the part of the defendant.
Appeal to the Higher Regional Court Düsseldorf
Judgment of the Higher Regional Court of Düsseldorf
The Higher Regional Court Düsseldorf partially upheld the plaintiff’s appeal. The plaintiff was entitled to bring action under § 8 Para. 3 No. 1 UWG (Unfair Competition Act), as it was a competitor of the providers using the portal. The court ruled that the portal of the defendant promoted competition among the providers, thus constituting a competitive relationship.
Defendant’s Duties Under Competition Law
The court held that the defendant had a duty under competition law. The defendant must ensure that commercial providers comply with their legal notice obligations under § 5 Para. 1 TMG. It was unreasonable to expect the defendant to manually review all offers. However, the court found that the defendant could be required to design the offer form in such a way that it requests the necessary information about the trade register and legal entity. Allowing the submission of ads without ensuring compliance with legal notice requirements violated § 3 UWG.
Liability Exemption of § 10 TMG
The defendant could not rely on the liability exemption under § 10 TMG, as this did not apply to claims for injunctive relief. Furthermore, § 7 Para. 2 Sentence 1 TMG, which exempts service providers from monitoring and investigation duties, only applied to general monitoring duties, not to specific obligations aimed at preventing competition law violations.
Adjustment of the Offer Form
The court found that the defendant must adjust its offer form so that it includes fields for legally required information, such as company name and trade register entry. These details must be requested, and if information is missing, there should be a notification about the legal notice requirement.
Conclusion and Significance of the Judgment
The judgment of the Higher Regional Court Düsseldorf clarifies that operators of internet platforms bear a responsibility under competition law when they enable commercial providers to offer goods and services on their platforms. They are obliged to ensure that legal requirements, such as the legal notice obligation, are adhered to in order to avoid competition violations. However, this only requires reasonable measures, such as adjusting offer forms, and does not entail a complete pre-check of all listed ads.
Source: Higher Regional Court of Düsseldorf
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