Up to 1000 webmasters in Germany received a warning about
their links to websites offering internet gambling that has not been licensed in
Germany. The letters demand the webmasters refrain from further linking to these
sites and pay 381, 64 Euro as attorney's fees. The letters have been sent by a
German law firm. Their client runs an "internet portal", which
contains ads for gambling sites, that have been licensed in Germany.
Commentators of the case point out that the warnings themselves might be illegal
under the German Act Against Unfair Competition (UWG). One lawyer even talked
about fraud.
As for the legal situation in Germany, any person who advertises illegal gambling is
subject to criminal charges under Section 284 IV of the German Criminal Code
(StGB) and can also be in violation of Section 1 UWG. At least two German courts
have already dealt with the issue of links to gambling sites. One held that a
simple reference to an illegal gambling site is only prohibited by Section 284 IV
StGB, if its evident object is to promote it . A mere link does not
suffice for it. Another court reached the conclusion that a company that links to the
website of an affiliated company can be held liable, because the link
contributes to the success of the games offered at the linked-to-site. So to
conclude, the question if and under which circumstances links to online gambling
not licensed in Germany are illegal, has not finally been decided by the courts.
Similar problems arise e.g. in the USA. In 2000 a
Houston-based Internet company whose sites contained several links to electronic
gambling has been investigated for allegedly illegally promoting gambling. In
2002 a proposed bill to ban Internet gambling would have required Internet Service Providers to remove hyperlinks to Websites that offer
gambling. The bill did not pass in the Senate (For more Information on the bill
click here).
2. SBC Communications v. Museumtour.com: Frames Patent?
Last year British Telecom (BT) lost its legal challenge
against Prodigy to charge US ISPs a fee for using hyperlinks. A court ruled that
ISPs do not infringe a patent filed by BT more than 25 years ago. BT had
asserted that the U.S.
patent 4,873,662 covers hyperlinks (Also see a compilation
of articles for further information on the case).
Now SBC Communications claims that it owns the right to
links that stay visible on the page during navigation. SBC sent an e-mail to the
site www.museumtour.com demanding a licence fee. If the claim would be valid,
SBC could demand fees from every company that puts links in frames.
Newsbooster has developed a downloadable programm called
"Newsbrowser" that uses peer-to-peer
techniques to search for news across the Internet. The programm comes as a
reaction to a verdict from last year, that prohibits Newsbooster from deep
linking to some news websites.
A list of websites, that provide Perl Scripts (with or
without charge) to stop linking can be found here
and here,
and PHP-Scripts here.
New in Decisions:
OLG
Hamburg,
Decision of June 5, 2002 - 5 U 74/01, CR 2003, 56
Competition
Law, Criminal Law
Wer
einen Link zur Website seiner Tochtergesellschaft setzt, haftet als Mitstörer
gem. § 1 UWG i.V.m. § 1004 BGB für die dort angebotenen nicht genehmigten Glücksspiele
(§§ 284, 287 StGB). Mit dem Link wird der Absatz der Wetten gefördert und ein
entscheidender Beitrag für die Nutzung und den Erfolg des Glücksspiels
erbracht.
Es
besteht keine Haftungserleichterung für Hyperlinks nach dem TDG. Für
Hyperlinks besteht in entsprechender Anwendung von § 8 I TDG - wie
bei dem Bereithalten von eigenen Informationen - eine Verantwortlichkeit nach
den den allgemeinen Gesetzen.
