This past summer, a decision of the Stuttgart Regional Court became known by the name #XINGGATE. In its decision (LG Stuttgart, decision of June 27, 2014 – file number: 11 O 51/14), the court held XING profiles to be independent telemedia, to which § 5 Telemediengesetz, the German Law on Telemedia (TMG) applies, meaning that personal XING profiles have be equipped with a masthead under German law.
The case had been taken to court, after a lawyer had received a written warning to cease and desist not equipping his XING profile with a masthead. For the purpose of clarification, the lawyer had asserted a negative declaratory action and lost. He appealed the decision and reported today about the appeal proceedings and todays case hearing before the Higher Regional Court in Stuttgart.
The Case Hearing
For once and due to the results of the case hearing, #XINGGATE will be ended by the Regional Court of Stuttgart’s judgement being annulled by a judgement by confession, as the negative declaratory action was acknowledged, after the Higher Regional Court of Stuttgart had informed the parties of its evaluation of the factual circumstances and its legal assessment.
The court pointed out that in its opinion personal XING profiles cannot be seen as independent telemedia. The platform only allows marginal personal setting, but otherwise strictly defines the information that can be included in a XING profile. Accordingly, personal XING profiles are not independent, but rather form part of the social media platform XING, which needs to be equipped with a masthead. Further, the court stated, even if a personal XING profiles were considered to be independent telemedia, linking to a masthead on another website would satisfy the requirements set forth by § 5 TMG, as long the masthead linked to fulfilled them.
Although it won’t be laid down in a court ruling, the opinion expressed by Stuttgart’s Higher Regional Court confirms that a website’s precise arrangement is the key criterion for answering the question, if it needs to be considered to be independent telemedia. They can be resorted to to fight future warning letters regarding this matter. However, they may not be the end result, as other courts like the Regional Court I of Munich (LG München I, decision of June 3, 2014 – file number: 33 O 4149/14) have ruled basically the same way as the Regional Court of Stuttgart.
Against this background, those using their XING profiles professionally can only be advised to equip them with a masthead fulfilling the requirements of § 5 TMG.