An anonymous entry in the web site said that a tax advisor,
whose name and address were included in the comment, would assist
with money laundering. For almost a month, the comment remained on
the guestbook before being removed upon coming to the attention of
the operators.
Action was taken against the site operators under Germany’s Use
of Telecommunications Services Act. The operators said that they
were unaware of the entry and would have removed it immediately –
had it been brought to their attention.
They also pointed out that there was a disclaimer on their site,
saying that they were not responsible for the content of the
guestbook.
The court acknowledged that the operators of the site could not
be responsible for all comments made by third parties on their
guestbook. However, it considered that it was reasonable to expect
them to check and remove the comments far earlier than they had
done.
According to the court, private homepages with “limited space”
for guestbook entries should be checked at least once every week.
Web sites cannot escape this obligation by using a disclaimer, the
court added, and guestbook entries will be attributable to the web
site owners as if they are their own comments.
There are few details of the ruling available at this time. The
above facts are from a press release of the German State Court in
Trier. It concludes that the Koblenz Regional Court dismissed an
appeal against the judgment. The names of the parties and the web
site involved were not disclosed.
The decision is surprising and inconsistent with the E-commerce
Directive. The Directive, in effect, says that web site operators
do not need to monitor the material posted to their sites by third
parties, provided they take action immediately upon becoming aware
of illegal material.
However, this is not the first decision by a German court in
recent months which appears to run against the E-commerce
Directive.
Steffi Graf successfully sued Microsoft in a German court,
effectively punishing the company for refusing to monitor web sites
which gave access to third parties, notwithstanding Microsoft’s
willingness to remove offending material upon it being brought to
the company’s attention.
