Does a German visitor implicitly agree to a website’s Terms of Service when reading a page?

Question

When Bob visits a website and reads a page, does he implicitly agree to the website’s Terms of Service?

• The ToS are linked from each page (e.g., in the footer), and they say something like "By using or accessing the Service, you agree to …".

• Bob has no user account on this site.

• Bob just reads (no content submission, no product ordering, no file download).

• Bob is from Germany.

What I found

From my understanding, that would be a browse wrap, but the Wikipedia articles makes no statement about the German jurisdiction.

The question What are the legal requirements for displaying a Terms & Conditions link on a website? is about Australia, and seems to focus on how the link must be presented.

The questions Website Registration Terms Agreement - Implicit With a Blurb or Need Checkbox? and How prominent must terms of service be? do not mention a jurisdiction.

One answer to the question What if the user disagreed with the Terms of Service, but still registered on a website? says that one usually agrees implicitly, another answer says that it might be unenforceable if it’s just a link among others, but the question does not seem to be specific to a jurisdiction.

Answer 1

In German Law you need to give your agreement ("Willenserklärung") to a contract or in this case terms of service. This is done by telling the other part. In some cases this can also be implied by an action (example: putting your bottle of beer onto the cashiers table is an offer to buy this bottle). As a second criteria a "Willenserklärung" needs to be the exact will of the part that declares its will (the website user in this case) §§ 133, 157 BGB or that the other side (you) could only see so (not the case here as this mainly speaks of content).

If you visit a website and there are terms of services, the "Willenserklärung" is only given when the user read and agreed to the terms. If he did not, the terms of service are not applied until the user agrees to them. So I would recommend to block the website until the user agreed (overlay) as you need to proof he did when in court.

Additionally there are so called AGB's in Germany. Those are contracts that are used or planed for many (more than 3) uses and set by one side (you). This may apply here, so you need to follow a lot of other rules like making sure the user had access and agreed, then there are many content restrictions and so on... I recommend consulting a German Lawyer specialized on this topic as this is very complex and includes other German laws for Media too, depending on the content of your site and terms.

Also note that everything said is only based on my own knowledge and can not be used as safe legal source.