With the reference decision on August 3, 2017, the Higher Regional Court of Hamm (case reference: 4 U 50/17) makes it clear beyond doubt that the reference to the European dispute resolution platform(ODR platform) must be made with a “clickable” link. However, a simple textual reproduction of the link to the ODR platform does not meet the requirements of the ODR Regulation. Furthermore, this obligation also applies to individual offers on an internet platform such as “eBay”, even if this is not to be regarded as a separate website or online store.
OLG Hamm follows the decision of the OLG Koblenz – link must be clickable
With this decision, the OLG Hamm follows the opinion of the OLG Koblenz (judgment of 25.01.2017 – 9 W 426/16) and opposes the opinion of the OLG Dresden (judgment of 17.01.2017 – 14 U 1462/16).
The decision of the Higher Regional Court of Hamm was issued in the context of preliminary injunction proceedings under competition law. The mere textual reproduction of the internet address (URL) of the ODR dispute resolution platform – i.e. without a “linking” functionality – does not constitute a “link” within the meaning of Art. 14 para. 1 sentence 1 of the ODR Regulation. According to common usage, the term “link” presupposes a corresponding functionality.
Otherwise, it would have been sufficient if the wording of the standard had stated that the trader merely had to “communicate” the internet address of the ODR platform. A “link” is therefore something different than a mere non-clickable “URL”.
Broad interpretation of the term “website”
The court further states that Art. 14 of the ODR Regulation also refers to offers on the internet platform “eBay”. When the standard refers to a “website”, it also includes offers on the online marketplace eBay.
The judgment states:
The German-language entry on the term “website” in the Internet encyclopedia “Wikipedia” states that a “website” comprises all web pages belonging to a provider that are “grouped under a specific domain”, which could speak in favor of the interpretation of the term “website” represented by the defendant in the injunction.
However, the Higher Regional Court of Hamm argues that the wording of the English-language definition is different.
A website, or simply site, is a collection of related web pages, including multimedia content, typically identified with a common domain name, and published on at least one web server.
This clearly supports a broad interpretation of the term “website”. According to this, a combination of internet pages and other content under a common domain is merely a “typical” characteristic, but not a “necessary” one. This means that the presence of an entrepreneur on an internet platform such as “eBay” can also be understood as a website within the meaning of the ODR Regulation.
Recitals to the ODR Regulation also support a broad interpretation
According to the detailed explanations of the Higher Regional Court, no conclusions can be drawn that entrepreneurs who use an online marketplace to sell their products should not be affected by the provisions of Art. 14 of the ODR Regulation. Rather, the recitals (30) of Regulation (EU) No. 524/2013 are more likely to support a broad interpretation of the term “website”.
The purpose of the reference to the ODR platform is decisive
Ultimately, the meaning and purpose of the ODR regulation is decisive for understanding the standard. To avoid unnecessary repetition, the Higher Regional Court of Hamm refers to the statements in the judgment of the Higher Regional Court of Koblenz from January 25, 2017. The interpretation of Article 14 of the ODR Regulation requires a broad interpretation in order to protect consumers.