Editorial guidelines
1) Even those who only use the normal functions of a Facebook page for business purposes (comments and messenger), but neither individualize them nor operate their own company page (e.g. “fan page” or similar), use a telemedium as a service provider.
He is therefore subject to the imprint obligation acc.
§ Section 5 TMG.
2) The information obligations of Sections 312d, 312g BGB and Section 312 i I No. 2 BGB in conjunction with Art. 246c EGBGB must also be fulfilled in electronic business transactions when using the Facebook Messenger and the Facebook comment function.
3) The object value for the injunctive relief due to missing provider identification acc.
§ 5 TMG and due to unfulfilled information obligations (lack of revocation instructions and other information) is also appropriate for small businesses in the amount of € 5,000.00 each.
File number: 6 U 209/19
Announced according to the minutes on 19.05.2020
Frankfurt am Main Higher Regional Court
In the name of the people
Judgment
In the legal dispute
[…]
the 6th Civil Senate of the Higher Regional Court of Frankfurt am Main by the judge at the Higher Regional Court […] as a single judge in written proceedings based on the facts and disputes of 28.04.2020 ruled in favor of the plaintiff:
- 1) On the plaintiff’s appeal, the judgment of the Hanau Regional Court of 11/09/2019 is partially amended. The defendant is ordered to pay the plaintiff a total of € 887.03. The further appeal is dismissed.
- 2) The plaintiff shall bear 15% and the defendant 85% of the costs of the legal dispute.
- 3) The judgment is provisionally enforceable.
Reasons
I.
A description of the facts of the case is waived in accordance with.
§§ 540 I, 313a 11 ZPO are waived.
II.
The admissible appeal is partially successful on the merits.
The plaintiff is entitled to compensation for the warning costs from an object value of € 10,000 from Section 12 I 2 UWG, as the plaintiff’s warning of November 7, 2018 was justified.
1.)
The judgment suffers from a serious procedural error and thus a substantial defect within the meaning of Section 538 II 1 No. 1 ZPO, as it contains neither the facts nor the grounds for the decision, contrary to Section 313 ZPO, and this could not be waived in accordance with Section 313a ZPO.
§ Section 313a ZPO could not be waived.
In the present case, the Regional Court wrongly assumed that, pursuant to sec. § Section 313a I sentence 1 ZPO did not require a statement of facts because an appeal against the judgment would undoubtedly not be admissible. The plaintiff is adversely affected in the amount of € 881.79, as he sought a judgment in the amount of € 1,029.35 and the defendant was only sentenced in the amount of € 147.56. The appeal is therefore not undoubtedly inadmissible, as required by Section 313a I 1 ZPO, but undoubtedly admissible. As a result, the waiver of the grounds for the decision pursuant to Section 313a II ZPO or the inclusion of the essential content in the minutes pursuant to Section 313a I 2 ZPO is also incorrect, as this is linked to Section 313a I 1 ZPO.
This constitutes a serious procedural error. The determination of facts subject to the first instance is completely missing, so that the basis for the review of such a determination in the second instance is already missing.
However, despite the plaintiff’s request for a referral back, a referral back pursuant to Section 538 II No. 1 ZPO cannot be considered here, as neither an extensive taking of evidence is required nor is the relevant factual material even in dispute.
2.)
The warning was justified on the merits, as the defendant’s conduct at issue constituted several violations of Section 3a UWG.
a)
The defendant has violated the imprint obligation pursuant to Section 5 I No. 1 TMG.
(1) The Facebook page constituted a telemedium.
The term “telemedia” includes all information and communication services that are not telecommunications in the narrower sense or broadcasting, i.e. practically any online presence.
The term is to be interpreted broadly (Nomos-BR/Müller-Broich-Müller-Broich, TMG 1st ed. 2012, TMG Section 5 para. 2).
The explanatory memorandum to the TMG (BT-Drucks. 16/3078, 13) lists, among other things, online offers of goods and services with direct ordering options.
Mere advertising for goods without direct ordering options and other interaction options is also to be regarded as a teleservice (Senate, MMR 2007, 379; OLG Düsseldorf, MMR 2008, 682, 683).
Chat rooms or blogs are also to be regarded as telemedia (Nomos-BR/Müller-Broich TMG/Jan D. Müller-Broich, 1st ed. 2012, TMG Section 5 para. 2).
It is therefore irrelevant whether the defendant has specifically addressed potential customers himself via the Facebook page or whether – as the defendant claims – potential customers approach him; in any case, this is done using a telemedium.
(2) The defendant is also responsible for this teleservice as it is a service provider.
According to Section 2 No. 1 TMG, a service provider is any natural or legal person who makes their own or third-party telemedia available for use or provides access for use.
The applicability of the law always presupposes the provision of a service.
Conceptually, this means exclusively the provision of a service for another person.
The regulations for telemedia services therefore only apply in a provider-user relationship (Beck TMG/Gitter, 1st ed. 2013, TMG Section 2 para. 14).
In the case of business-like self-presentations in social networks, it depends on the design options of one’s own company profile on the platform whether an imprint obligation is triggered. The more leeway commercial users of the platform are given when designing their profile, the more likely it is that Section 5 will apply if this leeway is used. In any case, if the profile page can be designed in such a way that it is visually clearly distinguishable from others, the imprint obligation applies. In particular, if (background) images can be integrated and the look & feel and/or structure of the page can be adapted, sufficient independence is achieved. If, on the other hand, only individual information about the participating company can be entered, which is published in a largely uniform manner in the places provided for this purpose, there is no separate telemedium (Spindler/Schuster-Micklitz/Schirmbacher; Recht der Elektronischen Medien/, 4th ed. 2019, TMG § 5 Rnr. 21). Accordingly, not only Facebook is to be regarded as the provider here, but also the defendant. As is known to the court, the use of the Facebook network offers the defendant the opportunity to customize the profile page. The fact that the defendant does not make use of this possibility, but is limited to using the predefined communication options of the Facebook page (comments, messenger), does not take away the character of a media service from the overall appearance.
b)
The defendant has infringed Section 3a UWG in conjunction with Sections 312d I and 312g BGB. §§ 312d I, 312g BGB, Art. 246 II No. 1 EGBGB.
The information obligations of Sections 312d, 312g BGB presuppose that a distance contract exists. This is legally defined in Section 312c BGB to the effect that only means of distance communication are used to negotiate and conclude the contract, unless the contract is not concluded as part of a distribution or service system organized for distance selling.
The exclusive use of means of distance communication is obvious here; in the opinion of the Senate, the contract is also concluded within the framework of a distribution system organized for distance selling. The primary purpose of this requirement is to exclude transactions that are only accidentally concluded using means of distance communication from the scope of application of distance selling law. The restriction is primarily aimed at traders who generally offer their services in a store and only occasionally or accidentally accept telephone orders or send goods by post. These entrepreneurs should not be burdened with the extensive legal requirements of distance selling law, in particular the far-reaching information and documentation obligations under Sections 312d-312f (Palandt/Grüneberg, BGB, Section 312c, para. 6; BeckOGK/Busch, 1.1.2020, BGB Section 312c, para. 25). It is not sufficient to provide the technical means to conclude a distance contract (e.g. letterbox, electronic mailboxes, telephone and fax connections). In electronic commerce in particular, however, it is sufficient if the distance selling system consists of an online platform provided by a third party, such as Ebay, Amazon Marketplace (Recital 20 p. 6 Consumer Rights Directive; BeckOGK/Busch, 1.1.2020, BGB § 312c para. 27; see also BGH NJW 2017, 1024 on the conclusion of a brokerage contract via Immobilienscout 24). This is exactly what the defendant did here: He used the platform Amazon [ sic! Note of the editors: This refers to Facebook ] to initiate business for a company.
c) The defendant has also violated Section 312 i I No. 2 BGB in conjunction with. Art. 246c EGBGB.
The prerequisite here is the use of telemedia for the purpose of concluding a contract (electronic business transactions). This includes offers of goods and services in electronically retrievable databases with interactive access and direct ordering options (see Palandt/Grüneberg, BGB, 76th edition, Section 312i para. 2). The teleservice must be individually retrievable for the customer for the purpose of placing an order, i.e. from a technical point of view, the medium used must have a “return channel” through which the customer can request data and transmit his order (Boente/Riehm Jura 2002, 222, 226; Grigoleit NJW 2002, 1151, 1152; BeckOK BGB/Maume, 52nd Ed. 1.11.2019, BGB § 312i para. 14). Here, the defendant uses the Facebook comment function to initiate the contract, while the actual conclusion of the contract takes place via the messenger function[sic]. The standard purpose of Section 312 i BGB, to protect against typical risks of concluding contracts in electronic business transactions such as hasty conclusion of contracts (BeckOGK/Busch, 1.1.2020, BGB Section 312i para. 2-2.3), is thus fulfilled.
The breach of Section 312c BGB was also likely to significantly impair the interests of consumers or competitors.
d) However, the underlying value in dispute of € 15,000 still appears excessive to the Senate.
The infringements of competition law complained of, namely the lack of a withdrawal policy as well as the information pursuant to Section 312i BGB and the provider data required pursuant to Section 5 TMG, are by their very nature only suitable to a limited extent to impair the business interests of the infringer’s competitors. There is a considerable general interest in the fulfillment of these legal obligations for the protection of consumers, which is why infringements regularly exceed the de minimis threshold of Section 3 UWG. However, the interests of the individual competitor, which significantly influence the assessment of the value in dispute for a claim for injunctive relief pursuant to Section 8 III No. 1 UWG, are only indirectly affected by such an infringement of competition law (Senate MMR 2007, 117). The lack of revocation instructions and information in accordance with § 312i BGB and the provider data is not in itself capable of influencing the purchase decision in favor of the infringer and to the detriment of his law-abiding competitors. The infringer only gains a commercial advantage from its infringement of competition law if the buyer is deterred from asserting the claims to which it is entitled after the contract has been concluded, in particular due to the lack of information on the right of withdrawal because of ignorance of the legal situation. However, this only has an effect on the specific sales opportunities of competitors in a few individual cases in such a way that the consumer, who is prevented from exercising a right of withdrawal in this way, would otherwise – i.e. if withdrawal had taken place as a result of proper instruction – have been available again as a prospective buyer for similar competing offers.
It must also be taken into account that, according to the facts of the case and the dispute, the defendant operates a small company with a low turnover and, due to the special circumstances (contact on Facebook, private message, no advertising page), the infringement is to be regarded as only just above the threshold of noticeability under Section 3 UWG. Insofar as the plaintiff disputes this, it must be pointed out that he has the burden of presentation and proof for the requirements for his claim to compensation for warning costs. This also includes factual submissions that support the lawyer’s determination of the object value.
The Senate therefore considers an object value of € 10,000 to be appropriate; this is based on a value of € 5,000 for the missing provider identification (see Senate, MMR 2007, 117) and a value of € 5,000 for the missing revocation instruction including further information. A lower value cannot be considered in view of the fact that the expansion of the defendant’s business (announcement of an online store) is already planned and in relation to comparable cases.
e) Based on a 1.3 fee, this results in an amount of € 887.03
3) The decision on costs follows from Sections 92 I, 97 I ZPO.
The decision on provisional enforceability is based on Sections 708 No. 10, 711, 713 ZPO.