Why millions of websites currently have an incorrect legal notice ;-)

❌ Section 5 TMG no longer exists.

✅ Long live § 5 DDG (Digital Services Act).

The new Digital Services Act (DDG) has replaced the previous Telemedia Act (TMG). This change has taken many website operators by surprise, and suddenly millions of websites have an incorrect legal notice. The DDG has taken the place of the TMG so unpredictably that hardly anyone had it on their radar and even large platforms such as “Laws on the Internet” and “Dejure” have not yet updated it.

What is even more astonishing is that even many experienced lawyers and IT law experts were caught unprepared by this change. This change was introduced so quietly that it has caused considerable uncertainty not only among website operators, but also among many lawyers who specialize in Internet law. The changeover took place at such a pace that even common legal databases and legal information services could not keep up with the updates.

In such a digital age, where legal changes are usually immediately available in various online services, this is particularly remarkable.

No need to panic: New imprint obligation and waves of warnings

Since February 17, 2024, the mandatory information according to § 5 TMG has been replaced by § 5 of the new Digital Services Act (DDG). This surprising change has caused uncertainty among many website operators, and many are now wondering whether a new wave of warnings is imminent.

Is a wave of warnings to be feared?
The answer is: No, at least not from competitors.

The Unfair Competition Act (UWG) was also amended. In § 13 para. 4 No. 1 UWG now clarifies that competitors can no longer claim warning costs for violations of the imprint obligation. This means that warnings from competitors, which are often perceived as abusive and are only aimed at the reimbursement of legal fees, are no longer possible in this case.

Caution with warning associations

However, the situation is different for warning associations. They can continue to issue warnings if they believe that a website violates the new regulations. Such associations act in the interests of consumers and are keen to ensure compliance with legal requirements. You have the right to complain about infringements and, if necessary, to take legal action to protect consumer interests and to persuade companies to act in accordance with the law.

Possible risks and preventive measures

It is therefore advisable for website operators to check the imprint information and update it if necessary. Although the risk of a wave of warnings from competitors is low, warning associations can still take action. Operators should therefore ensure that their websites comply with current legal requirements in order to avoid possible legal consequences. A clear and up-to-date legal situation minimizes the risk of warnings and protects both consumers and companies.

Imprint obligation for influencers

An interesting question also concerns influencers who use the imprint of their marketing agency. As explained in this article , it is controversial whether this constitutes a breach of the imprint obligation. However, a warning is rather unlikely. However, providers of imprint services should make sure they have good general terms and conditions, as injunctions could be issued if an influencer violates the rights of third parties.

Need for action by website operators

Despite the relatively low risk of warnings from competitors, website operators should nevertheless check and adapt their legal notice information. Information such as “Imprint according to § 5 TMG” is now outdated and should be changed to the new law or better still simply to “Imprint”. The DDG replaces the TMG, and the mandatory information should be adapted accordingly in order to avoid legal ambiguities.

Conclusion: keep calm, but act

In summary, it can be said that the risk of a wave of warnings from competitors due to the amended imprint obligation is low. Nevertheless, website operators should keep an eye on the new requirements and adapt their legal notice to be on the safe side and prevent possible warnings from warning associations.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.