The Higher Regional Court of Frankfurt am Main ruled on March 14, 2017 that the lack of information about the responsible supervisory authority in the legal notice of a website can constitute a breach of competition law (case no.: 6 U 44/16). The mandatory indication of the competent supervisory authority is also essential information that must not be withheld from the consumer. The infringement is also noticeable for competitors and can therefore also be warned.
Incorrect indication of the supervisory authority in the imprint
An energy and insurance broker had not designed the legal notice on his website in accordance with the legal requirements. He used the number “0” as a placeholder for the competent supervisory authority, the competent court and other missing information:
Register court: Local court 000
Register number: HR 0000
Insurance intermediary register – registration number: 0000
Responsible supervisory authority: IHK 000
Value added tax identification number according to § 27a of the Value Added Tax Act: DE 00000000
Business identification number according to § 139c of the Tax Code: DE 0000000
By using the number “0”, the broker tried to make it clear to visitors to the website that this information was not relevant to them. Even if the incorrect information were to constitute an infringement of competition law, the broker was of the opinion that there was no noticeability in competition.
Warning due to an incorrect imprint lawful
A competing insurance broker then took its competitor to court for injunctive relief following a warning. Contrary to the opinion of the Regional Court (judgement of 26.01.2016 – 9 O 33/15), the Higher Regional Court of Frankfurt a.M. has now upheld the claim.
Indication of the supervisory authority is mandatory in the legal notice
The information provided by the estate agent in the legal notice was incorrect as it did not contain the mandatory information required under Section 5 TMG. The court further emphasized that the standard is a market conduct rule within the meaning of Section 3a UWG. Therefore, an incorrect legal notice is also an infringement of unfair competition.
Incorrect information is also noticeable to the consumer
Furthermore, the infringement was also likely to “appreciably” affect the interests of consumers. This is because the indication of “000” does not make it clear to the consumer that the local Chamber of Industry and Commerce (IHK) is the competent supervisory authority. On the contrary, the indication gives the impression that there is no competent supervisory authority because no trade requiring a license is exercised. This idea is reinforced by the other details, which are also only marked with “000”. And it is precisely this interpretation that – in the opinion of the OLG – leads to a perceptibility on the part of the consumer.
The incorrect information in the legal notice was a cost-intensive matter for the estate agent. He has to bear both the costs of the pre-litigation proceedings and the costs of the court proceedings, which can quickly add up to over 1,000 euros. It is therefore highly recommended to always adapt the legal notice to the current legal requirements and to check it at regular intervals.