The 5 Most Common Infringements and how to Avoid them
Written warnings make life difficult for self-employed people and freelancers. However, in order to be able to be warned at all, they must first commit a legal infringement that is capable of warranting a written warning. Websites presents lots of situations where such costly mistakes can happen. We tell you which five infringements occur most frequently in practice and how you can avoid them...
The Top 5 Infringements
In an internal study, we identified the most common violations by our customers and analysed more than 500 damage events from around eight years. We’ve summed up the results for you in this infographic. (Since image rights violations are a special form of copyright infringement, it doesn’t appear separately in this graphic):
With a share of almost 80 percent, copyright infringement is by far the most common. It’s no wonder, because almost every type of content is protected by copyright, regardless of whether it is an image, video, text or programming. As with all violations of rights, there is also a high risk that you may inadvertently violate copyright law although you believe you have done everything right. For example, you can also receive a legal warning because of a copyright infringement even if you did not commit it yourself.
That’s what happened to an exali customer who commissioned a ghostwriter to write a children’s handicraft book that he wanted to sell on Amazon. Instead of coming up with his own designs, the ghostwriter just took instructions from another craft book. As a result, our customer received a legal warning from a law firm that represented the publishing house that had released the handicraft book. Although the ghostwriter and not our customer had committed the copyright infringement, he received the legal warning.
Common Copyright Infringements Are:
- Copied text (note: general terms and conditions are also covered by copyright)
- Advertising texts, product images and descriptions taken over by the supplier without a legal right
- Using someone else’s infographic
- Using third-party video without the permission of the author
- Using images without permission or the author is incorrectly/incompletely named (see image rights infringement)
- Own video created with protected music deposited
- Using quotations without the consent of the author or reproducing quotes incorrectly
- Memes using protected content
How to Avoid Copyright Infringement
- Never copy other people’s texts without permission
- Use plagiarism software, especially when buying texts
- Only use image, music and video databases where copyrights are clearly regulated
- Read the fine print of licensing agreements: often the use of content is limited to non-commercial use or allowed online but not in print
- Foronline retailers: If you buy goods, always obtain the rights of use for advertising texts and product images from the manufacturer.
What Is an Infringement
An infringement is the encroachment on an existing right of a third party or on a granted legal position of a third party. This can be a violation of state, federal or European law, but also simply a violation of house rules, contractual conditions or general terms and conditions. In this article, we limit ourselves to typical infringement of rights done by companies and the self-employed, who are often subject to written warnings.
Image Rights Infringement
Image rights infringement is one of the copyright infringements. Since no website can do without images and photos and image rights infringements are particularly common, we explain the particular pitfalls here using a damage event that happened to us at exali.
Did you know that copyright cannot be assigned? Anyone who acquires image rights, for example, only acquires a right of use. Depending on the type of contract, the owner of the right of use can still infringe copyright. This is what happened to us in this damage event:
Although the naming of the author in the imprint is sufficient according to the aboutpixel licensing conditions, the lawyer argued that the author must be named directly on the image, since the two could otherwise not be assigned to each other or only with greater effort. The fact that the photographer herself agreed to these licensing conditions when she posted the picture is irrelevant. The protection of copyright goes beyond the licensing conditions regulated in the terms and conditions of the image portal. That was also the view of the judge, who suggested that we enter into a settlement with the opposing party in the subsequent hearing.
Common Image Rights Infringement:
- Missing or inadequate naming of authors (the devil is often in the details)
- Only the person who uploaded the picture is named, but not the creator of the picture
- Even if you change an image, it is still under copyright. It’s a dangerous misconception to think otherwise.
- Right of use did not apply to your intended use (e.g. for the illustration of a website, but not for social media)
- Right of use was limited in time and has expired
- Right of use only applied to private individuals, but the image was used commercially
How to Avoid Image Rights Infringement:
- Use your own images if possible
- Only use images with clarified copyright conditions
- Contact authors personally if possible
Copyright law does not refer to licenses but to rights of use, but both terms mean the same thing legally. Licensing rights are mentioned above all in the context of patent law, software and the Creative Commons licenses for image rights. So whenever the author has an increased interest in others using their product. The term “right of use”, on the other hand, often refers to individual agreements which an author grants in response to a request. This distinction is common, but makes no legal difference.
Infringement of Competition Law
The second most common infringement of rights in our study, accounting for 17 percent of all infringement, is infringment of competition law or infringement of free competition. There are two reasons for this. First: Keeping track of all the obligations under competition law is hardly possible due to the sheer volume and the changing legal situation. Infringement of competition law includes many violations; for example the imprint obligation, the price indication regulation in online trading, violations of general terms and conditions or a withdrawal policy. Second: Any competitor, as well as consumer and competition associations, can sue for an infringement and this (unfortunately) also includes pseudo-competitors or even lawyers who send out legal warnings as a business.
Violations committed by companies on their own websites are particularly lucrative for parties that send out written warnings. Because these violations can be discovered quickly using a search engine. Capturing proof with a screenshot is also very easy and takes a few minutes at most. Incidentally, warning notices are often sent to small and medium-sized companies because they would rather avoid a legal dispute than a large company with its own legal department. But even with online advertising and in social media, a violation of competition law can quickly happen, as an advertising agency that is insured through exali learned the hard way:
The dealership’s job for the agency was easy. They wanted a really strong ad for Facebook. The content: A brand new SUV available at the dealership. As we all know, these high-performance vehicles really make carenthusiasts heart race. That's why the ad also highlighted the vehicle’s horsepower, but the data on consumption and CO2 emissions was left out. An environmental association responded by demanding payment of a contractual penalty of 6.000 euros. The car dealership had previously made the mistake itself, without the agency, and therefore had to sign a cease-and-desist letter with the threat of a contractual penalty.
Common Infringements of Competition Law:
- Error in an imprint
- Misleading advertising (e.g. wrong price advertised)
- Limitation of liability in the terms and conditions too broad
- Price-fixing agreements
- Misidentification of advertising
How to Avoid Infringement of Competition Law:
- Use industry-specific portals to find out about current case law and your obligations
- Use legally compliant texts, ideally tailored for you by a lawyer
- Do not, under any circumstances, copy legal texts from other sites
- Always include the texts of your ads, social texts, SEO texts and print templates when maintaining your content; there are also lots of risks lurking here for receiving a legal warning (e.g. imprint obligation in social media)
The fact that trademark infringement comes in third place with three percent of all violations of rights is partly due to the fact that it can only be committed in business transactions. Anyone who has had their brand for a long time and therefore enjoys a high level of brand awareness among consumers can also be protected by trademark law without being entered in the trademark register (common law).
Only the owner of a trademark may issue a legal warning for trademark infringement. And well-known brands in particular make frequent use of this. However, there usually isn’t a bad intention behind this because brand owners have to defend their brand if they don’t want to lose brand protection. Apple stays particularly busy when it comes to legal warnings about trademark rights. Both the bitten apple and the characteristic “i” at the beginning of products have already been the subject of trademark disputes. A customer insured by exali actually received such an email from Apple’s lawyers:
Common Trademark Infringements:
- Advertising with third-party logos or seals of approval on a website
- Intentional or negligent plagiarism with third-party brands
- Unintentional resemblance of own designs with already protected trademarks
- Intentional or unintentional similarity of brand names
How to Avoid Trademark Infringement:
- Only use seals of approval if you also have the right to use them
- In any case, before registering a trademark, carry out a comprehensive trademark search; it is best to hire a trademark lawyer for this.
Infringement of Personal Rights
Infringements of personal rights came in last place in our study with two percent. For example, if you use an image in which a person is recognisable, in addition to copyright infringement, it may also be a violation of the personal rights of the people depicted. Because everyone has a so-called right to their own image. Like honour, this is a right that each of us has. This right is violated if a person is recognisable in an image (this also applies to caricatures and drawings) and the image is either distributed or made accessible to the public. Example:
Two-thirds of cigarette pack layouts have had deterrent images printed on them for a long time. But what if one of these pictures were of you? A man actually thought he saw himself in one of these shocking photos. After a brain injury, he was temporarily on a ventilator, and such a scene was depicted on the packaging. His physique was also very similar to the man depicted. In the course of the investigation, however, it turned out that he was wrong - the man in the picture was actually an actor hired for the shoot. If the plaintiff had actually been pictured, the case would have meant a hefty claim for damages plus court attendance expenses for the defendant.
By the way: Even if you post pictures of satisfied customers on your own website, Facebook or Instagram, as is customary with many companies, without obtaining their permission, you are committing infringement of personal rights that could be subject to a written warning.
Common Infringement of Personal Rights:
- Violation of right to own image
- Insult: Liability of site operators for comments by users as well
- Statements made by a person are presented incorrectly or in the wrong context
How to Avoid Infringement of Personal Rights:
- Do not use celebrity images
- Ask the person pictured for their written permission
- Contact the authors to clarify the legal situation
- Have interviews approved by the interviewee before you publish them
- if you learn of a third-party violation of rights on your site, for example in the comments, remove the post immediately.
Now you know the most common violations of rights by our customers in everyday digital life, but there is another violation that represents a high potential for companies and the self-employed receiving a legal warning:
The GDPR breach
No law spread more fear and terror among the self-employed than the General Data Protection Regulation (GDPR), which came into force on 25 May 2018. Because almost everyone is affected. Not only did privacy policies have to be adapted, but it also had to be ensured that application processes, contacting customers or business partners and many other business activities were GDPR-compliant. 2021 saw the highest GDPR penalties, as we discuss in our article below: Data Protection: 2021 Is the Year With the Highest Fines to Date
FAQ: 3 Questions about Infringement of Rights
This old saying also applies to infringement of rights: Knowledge is power. That’s why we have collected the answers to the most important questions about violations of rights in business here:
#1 What Are the Possible Consequences of an Infringement of Rights?
There are three things that can happen to you if you commit a violation of rights:
Everyone probably knows about this one, and it is one of the “most popular” tools around the infringement of rights. It’s pretty reasonable in itself because written warnings are (actually) supposed to relieve the courts, even if things often look different in practice. When violators receive such warnings, they are requested to stop the infringement immediately and not repeat it. That is why every warning is accompanied by a cease-and-desist letter. So if an infringement of rights can be clarified with just a little legal correspondence instead of using the courts, then there’s good reason for such legal warnings to exist.
If the infringement continues or the cease and desist letter is not signed, the violator may also receive a temporary injunction. This is a fast-track legal process that can also take place without a hearing. The order is then served by a bailiff and is immediately valid. If the violator does not comply with the temporary injunction, they will have to pay a fine. Temporary injunctions are used particularly frequently with infringement of rights on the Internet because they quickly end the violation or at least allow the violation to be stopped until the court proceedings.
If none of the other measures are successful, the infringement of rights will be dealt with in court. However, this is extremely rare, because both the written warning and the temporary injunction are effective remedies against a violation of rights. A legal hearing also involves a cost risk that both parties are reluctant to take.
#2 What if I Accidentally Commit an Infringement of Rights?
Unfortunately, it is irrelevant whether you committed the violation intentionally or unintentionally. Entrepreneurs are subject to a stricter standard than consumers, so you need to keep a close eye on your own risks and obligations. Ignorance does not protect against punishment here either. But as long as you acted without intent, your professional mistakes are at least covered by Professional Indemnity Insurance.
#3 What if I Haven’t Actually Committed an Infringement, but still Receive a Written Warning?
Imagine you receive a written warning, but you haven’t violated any law or not to the extent that you are accused of. Then you have to take action against the warning, which will cost you time and money (lawyers’ fees and possibly court costs). Professional Indemnity Insurance is a great thing to have if you receive such a written warning. That’s because the insurer will first check every warning at its own expense and fend off unjustified claims.
Infringements can happen: Therefore exali.com
All of the damage events described here have one thing in common: They had a happy ending because they happened to exali.com policyholders. All of the infringement of rights described above are covered with Professional Indemnity Insurance through exali. GDPR fines are insured, insofar as this is permitted by applicable law. As part of the included Passive Legal Expenses Insurance, the insurer also defends you against unjustified claims at its own expense.
You can put together all of our insurance policies individually online in just a few minutes. Do you have any questions? Then please give us a call on +49 (0) 821 80 99 46-0. Our customer service representatives are there for you Monday to Friday from 9 a.m. to 6 p.m. (CET) and will be happy to help you.