Written By: Dr. Christian Seyfert, LL.M. (USA) – German Attorney at Law, Certified Copyright & Media Law Specialist, Certified IP Law Specialist
WINHELLER Attorneys at Law
Frankfurt am Main, Germany
The German legislator recently reformed the Civil Code in order to protect consumers from such online offers, the liability to pay the costs of which is not immediately apparent from the presentation of the offer. The amendments of the law go into effect from August 1, 2012.
In the past, consumers had frequently fallen for “subscription traps,” the liability to pay the costs of which do not immediately result from the online offer, but rather is hidden in the small print on the website. The legislator wanted to put a stop to this practice now.
A substantial improvement of the law is that a company must design its website in the future such that the consumer expressly confirms with his order that he commits himself to a payment. If the order is made via a button, then the company fulfills its duty sufficiently only when this button is legible with only the words “order liable for payment” or is labeled with an appropriately clear formulation. Appropriately clear formulations are, for example “order liable to pay the costs,” “conclude a contract liable for payment” or “buy.” The consumer must know that his click on the button is associated with costs.
If the company does not meet these new duties, it will have the consequence that the contract with the consumer is invalid and therefore the consumer is not obligated to pay anything. Furthermore, the trader has to expect to be admonished by a competitor at his expense. The admonished trader must sign a cease and desist declaration with a penalty clause on behalf of the admonishing trader. In addition, he must pay the attorney’s fees of the admonishing trader for the drafting of the warning letter. Provided the admonished trader does not sign a cease and desist declaration with a penalty clause for the benefit of the admonishing trader, he may be subject to a preliminary injunction by a court at the request of the admonishing trader.
NOTE: All other duties must also continue to be observed by traders in the online trade. In particular, the traders must instruct consumers on their right to cancel, have a proper legal notice on their website and inform the consumer, for example, about how he can dispose of the product packaging.
NOTE ON EVENT: Attorney Dr. Christian Seyfert will hold a lecture on “How To Do Online Business in The German Market?” on September 18, 2012 in North Carolina, USA. We will gladly send you further information upon inquiry. With this lecture, he will go into further detail on the new duties described above for online traders, which apply from August 1, 2012.