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05 April 2001
Decision 4 Ob 274/00y of December 19 2000 is the first decision of the Austrian Supreme Court to deal with the issue of liability for the content of a web site operated by a third party. The plaintiffs in this case were the owner of a daily newspaper and its subsidiary company which is in charge of selling or procuring job advertisements in the daily newspaper. They brought a claim against the owner of the Austrian trademark 'Austropersonal' whose web site www.austropersonal.com contains a link to www.jobmonitor.com. The latter is advertised as the leading online employment web site for Germany and Austria.
Until the beginning of November 1999 the domain jobmonitor.com was registered to the defendant. Then it was transferred to a US company. Between June and August 1999 job advertisements that had previously been printed in the plaintiffs' daily newspaper appeared on the web site www.jobmonitor.com without the plaintiffs' consent.
The plaintiffs sought a preliminary injunction to prevent the defendant placing these advertisements on his web site, and to prevent the defendant linking the web sites www.austropersonal.com and www.jobmonitor.com. The plaintiffs asserted that the defendant violated the Law against Unfair Competition by misleading potential customers and engaging in acts contrary to ethical business practice. The defendant claimed that making old newspaper advertisements available online was not contrary to competition law.
The Austrian Supreme Court held that, generally, use of a competitor's work is not contrary to competition law provided that there are no specific circumstances that would make such behaviour contrary to ethical business practice. However, the defendant's behaviour was contrary to competition law since he systematically copied the plaintiffs' work without changing its wording or layout. The court stated that even if the defendant is no longer the owner of the domain jobmonitor.com, there remains the risk that he will continue to provide links from his second web site www.austropersonal.com.
The operator of a web site who links his or her web site to another clearly intends internet users to gain access to the other web site and makes the content of the linked web site part of his offer. According to competition law not only the person directly violating ethical business practice, but also the person enabling such violation becomes liable. The person setting a link to a web site operated by a third party purposefully establishes a connection to the other web site and consequently becomes liable for any violation of competition law that occurs on the other web site.
On a practical level the consequences of this ruling might be very broad. One of the main purposes of the Internet is to obtain a variety of information and this sometimes necessitates the linking of relevant web sites. The main advantage of the Internet (ie, efficient and fast access to information) may be endangered if the operator of a web site is liable for violations that originate from a linked web site. It is virtually impossible for the operator of a web site to control the content of all sites to which his or her own site is linked. However, the court explicitly left unanswered the question of whether this ruling should apply when web site links are merely listed to provide further sources of information, and the person setting the links does not intend to include the content of other web sites in his own.
For further information on this topic please contact Dieter Hauck or Barbara Kurz at Preslmayr & Partners by telephone (+431 533 16 95) or by fax (+431 535 56 86) or by e-mail (email@example.com or firstname.lastname@example.org). The Preslmayr & Partners web site can be accessed at www.preslmayr.at.
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