Wed, Jun. 09, 2004

Links to Gambling Sites

CK - Washington.   Yesterday, the Supreme Court in Karlsruhe published its April 1, 2004 decision, case number I ZR 317/01, on links from web sites to gambling sites. The ruling illustrates the supreme understanding of the Zivil Senat when it comes to the facts of life and life on the internet under the rule of law. As a result, it has generated a lot of buzz in Germany and abroad.

The key point of the ruling is that a party with a commercial web site may maintain, without fear of civil liability, a link to other sites, including a foreign site offering services that would require special permits under German law or else is illegal in Germany. In the particular setting, the German web site pointed to an Austrian gambling site. The Austrian site may cater to German customers and lacks a German gambling permit.

Understanding the realities of the marketplace and the internet, the Court stated that the link is an informational tool; it does not mean an endorsement of potential criminal activity. The German web site did not set the link to promote or otherwise assist the Austrian site or to benefit commercially from the link.

For these reasons, none of the statutory rules for civil liability under unfair competition laws, internet and communications laws, or general civil law, all of them within the context of the relevant European Union directives, and also including those that relate to acts of principal or to principles of aiding and abetting and joint tortfeasors, would operate to imply anything illegal in setting and maintaining such an informational link that serves as a technical convenience and does not financially benefit the operator of the site.

The ruling does not permit web site operators to wholly abdicate any responsibility for links. For instance, a link that would trigger an illegal effect immediately upon clicking on it, such as displaying criminal sex, would continue to expose the linker to liability, based on my initial reading of the ruling -- to be corrected if I am wrong.

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