Contents Basic Terms of use/ advisable regulatory points
- 1. Authorized users/target group
- 2. Service object
- 3. Login process/registration
- 4. Remunerability
- 5. Transfer of copyright rights of use
- 6. Admissible content and codes of conduct
- 7. Violations of the Terms of Use
- 8. Recourse claims
- 9. Disclaimer and Warranty
- 10. Termination
- 11. Change reservation
- 12. Applicable law and jurisdiction Privacy
Policy Imprint Conclusion Operators of communities have not only an administrative function, but also an order function, the exercise of which is essential for the avoidance of dispute potential and the guarantee of regulated processes. How legal regulations should be used to support this and which specific legal obligations must be observed is the subject of this contribution. Basic According to settled case law, operators of online communities have a so-called “virtual domestic right”, which enables them to establish binding rules of use and to confer appropriate consequences on any infringements (LG Bonn, judgment v. 10.11.1999 – Az. 10 O 457/99; LG Munich I, Decision v. 25.10.2006 – Az. 30 O 11973/05).
In particular, operators are permitted to withdraw the basis for interaction in the event of violations of the regulations of individual users, to exclude them from the community or to remove offensive contributions. However, the establishment of terms of use not only serves as a framework for peaceful, purpose-oriented communication and as a basis for a moderate intervention, but at the same time is able to minimize the liability risks of the operator. As a service provider, this opens up the possibility for third parties to publish their own contributions with individual content within the network managed by him and can therefore be held responsible for illegal acts or infringing user content under certain conditions. Although it is largely unanimously acknowledged in the case-law that it cannot be imposed on the operator to continuously check all published content for its legality.
However, as soon as he becomes aware of potential violations of the law, there is a legal obligation to act, the non-eighthlessness of which may establish injunction and compensation claims of third parties (BGH, judgment v. 27.03.2007 - Az. VI ZR 101/06; BGH, Decision v. 14.05.2013 - Az. VI ZR 269/12). It is true that the setting of illegal third-party content can be prevented by preventive terms of use. On the other hand, however, the operator himself has to comply with legal obligations that are intended to serve the protection of community users and whose inadequate implementation can justify his own legal violations. Which approaches and regulatory points should necessarily be taken into account in terms of use and which special information obligations additionally affect the operator is presented below: Banner Starter Package Terms of use/ advisable regulatory points Terms of use in online communities must always be qualified as general terms and conditions (GTC), regardless of their specific designation.
In order to guarantee their enforcement and the validity as the contractual basis of the use of the portal, it is mandatory that the registering user is informed about the conditions before the binding registration and actively agrees to them (by “opt-in”). This is done regularly in the context of an interface solution, which only clears the way for further registration steps when setting a checkmark behind the text “I have taken note of the terms of use and accept them”. Because the terms of use are not the subject of individual negotiations, but are rather unilaterally formulated and assumed by the operator, they are subject to the content control of §§305, 307 ff BGB as general terms and conditions. It is mandatory to check the regulatory content for any violations of applicable GTC law, since not legally compliant and thus ineffective provisions do not become part of the respective contract (and may be warned). In particular, in the event of ineffectiveness, no reduction is made to wordy-effective parts of a clause at the expense of the operator. Rather, this as a whole falls away. Provisions regarding the following content are highly recommended:
Target group If the community is not equally accessible to every user regardless of qualification, status or age, this should be explicitly stated. In particular, a prescribed minimum age may be advisable for reasons of protection of minors whenever the publication of youth-threatening or non-adolescent content cannot be excluded.:
So yes, this website and the offered services and dispositions starfleetUpTo.date are estimated to fit the requirements of upper and inclusive 11 years old... We announce that this is just an approximate guideline, which is no fixed value of an unweaving stubberness.
Irrespective of the remuneration of the use, it should be stated which essential services and functions the community provides. If the use is linked to a payment obligation, the description of the available platform services is absolutely necessary:
Alright, so here are the payment gateways already established and some which might be added soon:
Available payment options:
- The integration plugin 'Stripe' is installed but not published.
- The integration plugin 'CCBill' is installed but not published.
- The integration plugin 'CIC Credit Mutuel' is installed but not published.
- The integration plugin 'eWAY' is installed but not published.
- The integration plugin 'Moneris eSELECTplus' is installed but not published.
- The integration plugin 'Payza' is installed but not published.
- The integration plugin 'QuickPay' is installed but not published.
- The integration plugin 'Skrill' is installed but not published.
- The integration plugin 'TeleMoney EasyPay' is installed but not published.
- The integration plugin 'TwoCheckout' is installed but not published.
- The integration plugin 'WorldPay' is installed but not published.
- Untrue factual assertions about persons (especially those who, as slander, diminish the social right of respect) insults
- criminally sanctionable acts (proliferation of certain pornographic content, racist statements, shouts of incitement, etc.)
- the posting of non-adult content (for communities with users under 18 years of age)
- Violations of third-party data protection rights
- the unauthorized publication of copyrighted works (texts, images, video sequences, music, etc.)
- the violation of personality-related image rights, e.g. the publication of images of third parties without their consent (cf. §22 KUG)
Not yet established, but planned:
Under this point, the individual steps necessary for a successful registration should be presented. At the same time, information about the data collected and stored by the user during registration should be provided.
The reference to the pay or free of charge of community use is necessary. If the access is linked to a payment obligation, the details of the cost calculation, the accepted payment methods as well as the time and procedural details of the survey must be presented. If general access is free of charge, but individual services are only available for a fee, a clearly delimiting list of free and fee-based services should be reported.
Transfer of copyright rights of use Essential for the flourishing and functionality of the platform are provisions that the copyrights of the users incurred in the contributions are transmitted to the operator within the meaning of §34 UrhG. The scope of the granting of rights should in principle take into account the interests of the users in order to avoid the impression of a right exploitation and associated user protests, but should ensure the economic use of the content (for example, to promote the platform in third-party media, apps or other applications). If the right of transmission is used in this respect, it is necessary to inform you how and where the granted rights of use are used.
(Codes of conduct) In order to minimize own liability risks (see above), it is mandatory to integrate provisions on generally desired and expressly prohibited content into the terms of use.
This list is not conclusive and can be extended according to the objective and the specific functions of a community. In addition, the designation is also certain rules of conduct, the observance of which ensures peaceful cooperation and guarantees the usefulness of the platform. The specific design depends on the relevant user groups of the community, but should at least contain provisions on a standard “netiquette” and the admissibility of user-related advertising measures.
Against the Terms of Use In a next step, the measures to be taken by the operator in the event of infringements of the content and code provisions should be explained. In order to prevent allegations of inappropriate censorship, a graduated response system is recommended, which, as a direct consequence of the violation, first provides for the deletion of the content in question, in the event of renewed infringements or an increased severity of the fault, a warning from the user and as a “ultima ratio” the exclusion of the user from the community or the deletion of the user profile.
Claims Because operators of communities can be taken into account for injunction and damages from the point of view of content posted by users (see above), a clause is recommended that provides for the recourse to the user as the original infringer. On the basis of these provisions, payment claims by third parties and any legal costs may thus be passed on to the user.
In a further point, warranty claims of the user for defects and the liability measure should be regulated. Provisions are often included here, which limit or limit liability according to legal regulations. Certain statutory evaluations set out in §309 No. 7, No. 8 BGB are pronounced, but must not be undermined. If the liability is unreasonably limited or unjustifiably excluded, this shall result in the invalidity of the clause as a whole.
Are advisable that identify the formal and material requirements for termination of the contractual relationship by the user on the one hand and by the operator on the other hand. If necessary, information on the procedure of the settlement may also be required. In addition, it is necessary to differentiate between the two possibilities of ordinary and extraordinary termination.
Because the need to adapt the provisions to new developments or a changed legal situation can often arise with increasing operating time, a reservation of amendments is recommended, which makes the changes possible regardless of their approval by the user. If such a reservation is waived, each user would have to individually agree to the modifications by opt-in.
According to jurisdiction It is highly recommended to refer to the (national) law applicable between the platform operator and the users. Similarly, the place of jurisdiction, which will regularly correspond to the platform operator’s registered office, should be cited in order to prevent subpoenas of courts in other cities in the event of litigation. Privacy Policy Because the operator of a community is to be qualified as a service provider in accordance with § 2 No. 1 of the Telemedia Act (TMG), he is legally obliged to obtain the user’s consent to the collection and processing of his personal data in accordance with §§ 12,13 TMG and to inform him of the nature, scope and purpose of the collection and use of the personal data at the beginning of the usage process. It is important that in particular the use of social media plugins (“Facebook-Like-Button”, “Google +1”, etc.), their providers and the data collection processes inherent in them must be pointed out. Read also