How do you react to a written warning?
Written warnings are a classic in the area of legal infringements and a risk for freelancers and the selfemployed in all industries. In the worst case, it can be expensive. But with the right behaviour, you can minimise the damage. Read the article to find out what is important.
What is a written warning?
A written warning is a letter in which you are required to refrain from certain behaviour. You are expected to do this by signing the attached cease-and-desist declaration - you will usually also be asked to bear the costs of the written warning. Depending on the type of infringement, you may also be faced with a claim for compensation - for example, if you have infringed copyright.
Who is authorised to issue written warnings?
Generally, only those persons who have rights - for example to a trade mark or a work - may issue written warnings. Legal representatives or consumer centres are also permitted to do so. Competition offences form a separate category. Competitors, their representatives and competition associations are authorised to issue written warnings. In some countries, customers are also permitted to do this if competition law is infringed.
Written warnings from rights holders
Have you used someone else's image on your website without obtaining permission? Then the person who owns the rights to this image can issue you with a written warning. The person can do this themselves or instruct a lawyer to do so.
Written warnings from the competition
If you run your own business, you must fulfil certain obligations. If you fail to do so and thereby gain a competitive advantage, you are committing an infringement of competition law. This can be the subject of written warnings from various parties. Typical cases of infringement of competition law are (depending on the country in which you operate)
- Errors in the legal notice, in the General Terms and Conditions or in the cancellation policy
- Price fixing
- Misleading advertising
- Violation of labelling obligations
Is it possible to issue written warnings internationally?
Written warnings are possible internationally - for example, if you sell products in the Netherlands via your online shop. If you commit an infringement of competition law, regional online retailers, for example, can issue you with a written warning.
Written Warning By Consumer Centres
Consumer centres enforce consumer protection rights. They have what is known as “class action authority”. This allows them to issue written warnings for certain infringements.
What is a cease-and-desist declaration?
If you receive a written warning, you will be asked to sign a cease-and-desist declaration. In doing so, you promise to refrain from the warned behaviour in future. You also agree to pay a contractual penalty if you breach this obligation.
The dangerous thing: If you sign a cease-and-desist declaration, you admit to the alleged infringement. In addition, you promise not to repeat the offence - if you commit the same misconduct again, you will have to pay a contractual penalty. The danger here is that many cease-and-desist declarations are too broad. They cover more than the original infringement. This makes it much more difficult to refrain from future infringements.
How do you react to a written warning?
First things first: stay calm. Don't get carried away and never sign the enclosed cease-and-desist declaration. Instead, always have the written warning checked by a lawyer. Never negotiate with the other party yourself.
This case of this damage event shows very clearly why this can go wrong: Trademark Infringement: An IT Service Provider Forgets to Do his Trademark Research.
If you have taken out Professional Indemnity Insurance, report the written warning to your insurer immediately. They will check the written warning for you and defend you against unjustified claims.
We have summarised how to react correctly to a written warning in this video:
How can you protect yourself against written warnings?
If you receive a written warning, the initial shock is great. But with Professional Indemnity Insurance through exali, you are not alone in the case of a damage event. If you receive a written warning, the insurer will check whether it is justified at its own expense. It defends against unjustified claims and pays justified claims for compensation.
You can take out your Professional Indemnity Insurance online with exali in just a few minutes and customise it for your business with our additional add-on modules.
Vivien Gebhardt is an online editor at exali. She creates content on topics that are of interest to self-employed people, freelancers and entrepreneurs. Her specialties are risks in e-commerce, legal topics and claims that have happened to exali insured freelancers.
She has been a freelance copywriter herself since 2021 and therefore knows from experience what the target group is concerned about.
