Court makes an exception for metatags relating to advertising

In the latest decision to deal with the controversial issue of metatags, a district court has ruled that metatags are legal if the keywords used relate to advertising on the website in question. However, the court followed previous German case law and prohibited the use of a third party's name, commercial designation, trademark or other terms as metatags where the terms make no reference to the website.

The defendant included hundreds of metatag keywords in the hypertext markup language (HTML) code of his commercial website. The keywords related to neither the site's content nor the hyperlinks integrated into it. As a result of the metatags the site was listed seventh when a search was run on Google for 'Microsoft specialist dealers', even though the website bore no relation to information technology. The plaintiff, a trade association, filed suit to prohibit the defendant from using any metatag keywords that were not related to the site's content.

The defendant argued that his behaviour was not illegal because he had not gained economic benefits from using the metatags. He also cited a decision by the Higher Regional Court of Dusseldorf, where the court held that the use of two specified metatag keywords was not illegal (see Metatag issue divides German courts).

The court commented that companies must accept that their competitors can use numerous metatags provided there is at least a broad connection to the service offered. If keywords relate to advertising hyperlinks that are integrated into the website in order to allow profitable transactions with advertising partners, then such metatags are legal. However, the court emphasized that the limits of fair competition are exceeded if hundreds of terms are listed as metatags and few, if any, are related to the services or products offered on the website. In such cases it is justified to conclude that the website owner is using the technical failings of search engine software to gain a competitive advantage. Therefore, the court held that the defendant gained an illegal competitive advantage over those competitors who presented their websites without manipulative metatag keywords.

With respect to the higher regional court's decision, the court noted that the higher regional court was also of the opinion that the use of metatags was illegal if the use of unrelated keywords resulted in a website jumping to the front of search results.

Boris Börsch, Hölters & Elsing, Berlin