In a recently published judgment, the Federal Court of Justice clarified the rules on liability for hyperlinks (Federal Court of Justice of June 18, 2015). Subject of the proceedings was a link on the defendant’s website that forwarded users to a third-party website. One of the subpages of that website contained allegedly anticompetitive content.
The Federal Court of Justice rejected liability of the website operator displaying the link. While the link constituted a commercial transaction for the purposes of competition law, the website operator had not appropriated the content of the linked website from the average user’s perspective. This assessment was governed by the fact that the subject matter of the linked website was not an integral part of the business model of the website operator displaying the link. In addition, the link did not lead to the subpage of the website with the challenged content, but to its homepage.
The Federal Court of Justice clarifies, however, that website operators are responsible to observe reasonable examination duties due to the risk-increasing effect of linking to unlawful content. In the interest of freedom of expression and press, no high demands are placed on the examination. If infringing content of the linked website is not clearly apparent, the website operator displaying the link is only liable where he becomes aware of the content’s unlawfulness and still fails to act.