E-commerce law: Legal requirements also apply on the internet. All operators of an online presence, whether they run a website, a blog, a forum or a social media account, must adhere to certain legal framework conditions.

Topics in our legal advice

With a web shop, this becomes even more important. For example, common legal terms such as general terms and conditions, copyright and consumer rights also apply without restriction in e-commerce. Certain sub-areas of the law now have their own legal regulations.

To prevent your company from being blacklisted by competitors, we explain what you should pay attention to.

Table of contents

E-commerce law in Germany
Important provisions at a glance
E-Commerce Law: Concluding Contracts on the Internet
What do consumers need to know?
E-commerce law: What obligations apply?
Contact Herfurtner Law Firm

E-commerce law in Germany

Many companies and business strategies today rely heavily on online trading and selling. It is now common for businesses to sell their products online and through third party platforms. The regulations for e-commerce and mobile commerce are constantly changing.

In Germany, there are a number of laws and regulations that govern, protect and regulate internet commerce. In addition to the general legal bases, which apply without restriction, the following legal provisions must be observed:

German Civil Code (BGB)
German Commercial Code (HGB)
General Terms and Conditions of Business Act (AGB)
Copyright Act (UrhG)
Consumer Credit Law
Trade Regulation Act (Gewerbeordnung)
Unfair Competition Act (UWG)
Criminal Code (StGB)

German Telecommunications Act (TMG)

If you are an entrepreneur selling goods or services online, the Telemedia Act is an important set of rules to follow. The legal framework for telemedia in Germany can be found in this document, which combines the previous Teleservices Data Protection Act and most of the provisions formerly contained in the Media Services State Treaty into a single document.

German Civil Code 312 b ff Distance Selling Act

In order to improve consumer relations in the EU, the EU Distance Selling Directive has existed since 2000 and has been implemented in EU contracts. According to the Distance Selling Act, which was passed in 2002, the laws of the German Civil Code (BGB) can be read directly in the German legal code.

In order to benefit from this exemption, all contracts for the delivery of goods or the provision of services must be concluded exclusively using means of distance communication (such as e-mail and telephone) as well as letters, catalogues and faxes.

The Digital Signatures Act of 2013 (SigG)

Efforts to regulate electronic signatures began on 22 May 2001 when the Digital Signatures Act came into force. In this case, a person’s electronic signature is used. It can be used to sign digital papers and other data in a legally valid manner.

The technology of the electronic signature ensures that the identity of the counterpart and the integrity of the information can be established beyond doubt, since data transmission via networks plays such an important role today.

Definitions of terms and conditions (GTC)

General terms and conditions may also be included in online contracts. However, §§ 307-309 of the German Civil Code (BGB) prescribe an unrestricted review of content.

In order for GTCs to be included in the contract, the following requirements must be met:

There must be an explicit reference to the GTC in the order form before the contract can be signed. Or the entrepreneur must make a clear reference to the GTC on his website.
Make sure that all information in the T&Cs is easily accessible.
To ensure the readability of the T&Cs, do not use mini fonts.
In order to be able to read the T&Cs on screen, the wording must be limited to a reasonable length.

It is important to note that the rules and responsibilities described here are merely an illustration of German case law. The necessary consumer protection laws of the country in which a company operates must be observed at least if the company also does business in other countries.

According to the decisions of the European Court of Justice (ECJ) of 7 December 2010, C-144/09 and C-585/08, a business can also be sued abroad and would have to sue the customer in the country of the consumer (consumer jurisdiction).

A “targeting” of foreign markets is presumed by the European Court of Justice (ECJ) if the trader has made clear its intention to do business with customers in other Member States

For example, by using an international telephone number or a top-level domain that does not correspond to the country in which the trader is established, by presenting his offer in foreign languages, by quoting prices in foreign languages or even by mentioning a foreign country.

Important provisions at a glance

Any effort to adequately implement the requirements of the legislator and the courts should not be underestimated, regardless of whether products or services are involved. When it comes to running an internet business, the following construction sites come to a lawyer’s attention:

Competition/name/trademark law (domain law).
Identification of the service provider (imprint)
Data protection law DSGVO
General terms and conditions (B2C-/B2B-AGB) for all customers and providers
Cancellation (form and deadline)
Detailed explanations of the products (texts, photos, mandatory information)
Cost information (net or gross, the absolute minimum)
Information on delivery (costs, times, delivery areas)
Termination of the contract (time, procedure, mandatory information)
Obligation to warn and/or intervene with regard to children in need of protection (age verification)
What is the target audience (B2B or B2C)?
Marketing strategies (email advertising, SEO/SEM/SEA, AdWords, seals of approval, pledges, price advertising…).
Profile information in social media (Facebook, Twitter, Youtube, LinkedIn, Xing, WhatsApp, Instagram, Snapchat …).
Trademark law (own and/or third party trademarks) may be relevant where applicable.
Cross-border business has unique features (delivery area outside Germany).
Trading platforms offer a number of unique features (Amazon Marketplace, eBay Powerseller etc.).
In addition, since 13 June 2014, certain information obligations exist if a stationary shop exists.

E-commerce law: the conclusion of a contract via the internet

Internet-based contracts can also be legally binding (by e-mail).

E-commerce contracts are not subject to any special formal requirements when they are concluded. Only the contractual information obligations of m-commerce providers are subject to formal requirements in the form of a durable medium pursuant to section 126b sentence 2 BGB.

E-commerce law: Proving the conclusion of a contract

The conclusion of a contract can only be proven in court with the help of printouts of the digitally recorded data underlying the electronic declarations of intent.

For a contract to be concluded, there must be an offer and an acceptance. This legal definition of the term “offer” does not apply to catalogues on the internet or electronic “shopping baskets” of customers. Only when a consumer writes an e-mail or fills out an online order form is there a binding offer.

E-commerce law: Security guidelines

The security of an online payment transaction is based on the guidelines. The policy was created to prevent payment fraud and to increase customer confidence. Strong consumer authentication is an important part of this, as is new legislation in the area of online payments. When making an online payment, the identity of the customer must be verified on the basis of two different characteristics.

E-commerce law: What do consumers need to know?

Especially if the target audience is exclusively or predominantly private individuals, numerous restrictions must be observed. This is due to the large number of enforceable consumer protection laws, especially in the European Union (EU). Private consumers must be explicitly informed of the following before making a purchase:

Technical steps leading to the conclusion of a contract.
Is the text of the contract kept by the trader and is it accessible to the consumer after the conclusion of the transaction?
Ways of detecting and correcting customer errors throughout the ordering process through appropriate, effective and easily accessible technical methods.
The contract can be presented in different languages.
Electronic proof of immediate receipt of an order.
When a contract is signed, the terms of the contract and the general terms and conditions can be retrieved and stored in reproducible form.
Name, address, telephone number and, if applicable, fax number of the trader, as well as the business address to which a customer can address complaints if this address is different from the address of the place of establishment.

Some of these items are more important than others. For example, it is essential to include the name, address and telephone number of the business in the imprint, as well as the description of the product and the price. Nevertheless, you must make sure that you do not overlook or neglect anything crucial.

Sector-specific regulations in e-commerce law

In addition to the above-mentioned necessary information, sector-specific peculiarities must be observed for the following sectors or product groups:

Alcohol and/or tobacco addiction (Youth Protection Act)
FSK18 films and video games (Youth Protection Act)
Rechargeable batteries (Battery Act)
Detergents and other cleaning agents (CLP Regulation)
Infrared heaters (Electrical and Electronic Equipment Act)
Textile goods (Textile Labelling Ordinance)
Refrigerators, dishwashers, washing machines (Energy Consumption Labelling Act)
Toys (Toy Ordinance)
Aesthetics (EU Cosmetics Ordinance)
Inventions (German Medicines Act)
Food supplements (Health Claims Regulation)
Definition (Food Information Regulation)
Vehicles and vehicle parts (Passenger Car Energy Consumption Labelling Ordinance, Road Traffic Licensing Ordinance)
Oil from the engine of a vehicle (Waste Oil Ordinance)

Other relevant regulations for e-commerce law

Restrictions that apply to (almost) all online shops but may not be known by the general public include the following:

Prepackaging Ordinance
Product Safety Ordinance
Units and Time Act
Packaging Act
Packaging Ordinance

Ordinance on Price Indication (PAngV)

The Price Indication Ordinance stipulates how online traders must display their prices. Due to the complexity of the new Price Indication Ordinance, many difficulties and challenges arise for online shops. According to legal experts, rulings by the Federal Supreme Court are necessary for a successful implementation.

Basically, it is to be ensured that consumers have access to accurate and comprehensive price information so that price truth and price clarity are maintained. In addition, the position of the consumer vis-à-vis trade and commerce is to be strengthened and competition in the market is to be promoted.

E-commerce law in the EU

Since 2000, there has been a set of rules for e-commerce in the internal market of the European Union. The aim is to give both entrepreneurs and consumers more legal certainty. Crucial to this is the standardisation of rules on disclosure and information obligations for providers of internet services, commercial communications, electronic contracts and limitations of liability for intermediaries.

In online trade between EU member states, a number of EU regulations must be observed in addition to German jurisdiction.

Need for information on online dispute resolution

A little more than a year ago, the EU Commission adopted the new ODR Regulation (Online Dispute Resolution Regulation). The main objective of the ODR Regulation is to create an EU-wide procedure for online dispute resolution. The aim of the ODR platform is to create a contact point for consumers and businesses who want to resolve legal issues on the internet out of court.

Since 9 January 2016, entrepreneurs who conclude online purchase or service contracts with customers must include a link to the ODR platform in their general terms and conditions, imprint and, if applicable, in their emails so that customers become aware of the platform.

Due to the lack of a link to the ODR platform, warnings under competition law have already been sent out. Consumers should be able to click on the link without any problems.

E-commerce law: What obligations apply?

In addition to the information duties of distance selling, the providers of e-commerce offers also have duties. Similar information duties apply here, but in addition, the technical processes in the shop, in particular the purchase process and the order overview page, are also relevant.

Documentation of the conclusion of the contract

To ensure that customers can make the necessary corrections to their order data before it is sent, the company must provide them with appropriate, effective and easily accessible technical tools. The rest of the ordering process must also be clearly designed. The technical steps of the contract are as follows:

When a contract is signed, the customer should be able to see the terms of the contract.
When a consumer places an order, he or she is often making an offer to enter into a contract of sale, which the seller usually accepts by shipping the goods.
Describe in simple terms the legal procedures leading to the signing of the contract.
It is necessary to provide information about the declaration made by the customer as well as the action (e.g. an email confirmation or the delivery of products) that leads to a legally binding contract.

Button solution in e-commerce law

The button solution has been mandatory since 1 August 2012. It is intended to protect customers from subscription fraud and other services that are not immediately apparent.

The trader must therefore use clearly marked buttons to inform the customer that payment for the order is due immediately. While a button is not essential, the other options are not particularly well marked either.

Consideration of competition law

The Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb, UWG) and the Price Indication Ordinance (Preisangabenverordnung) apply without restriction in Internet business insofar as these laws, by their meaning and purpose, also cover electronic business transactions and thus also apply in Internet business.

Competition law prohibits the use of unsolicited e-mails for advertising purposes. The transmission of a message requires that the recipient has either expressly consented to receiving it or that his or her consent can be inferred (e.g. on the basis of long-term business relationships).

Only a B2C (business to consumer) connection is exempted by the UWG. Customers of a company may receive advertising e-mails if they have voluntarily provided their e-mail address as part of an order and have not subsequently objected to receiving them, provided that the content promotes products or services of the same kind that the customer has previously purchased from the company.

If unsolicited electronic advertising is allowed at all, the subject line must indicate that it is a marketing message. It is also prohibited if the advertisement is disguised as a direct mail piece.

Legal guarantees for customers

When conducting online business with consumers (i.e. customers who are not themselves entrepreneurs or customers in their role as entrepreneurs), the extensive consumer protection provisions of the BGB must be observed.

Possibility of revoking consent

The BGB distance selling law provides for a broad right of withdrawal for consumers. The duration of the revocation period depends on the time of conclusion of the contract. If the customer is informed of his or her right of withdrawal before the contract is concluded, he or she has two weeks to withdraw from the contract.

The period is one month if the customer is informed after signing the contract. During this period, the consumer can revoke the contract at any time without having to give reasons.

Privacy policy in e-commerce law

If a website uses personal data, the content of the privacy statement depends on the purpose of the data. D. The user must be informed from the outset about the collection and use of personal data and about any transfer of data to non-EU or EEA countries.

It is imperative that precise and comprehensive information is provided in this regard.

Copyrights also apply in e-commerce law

In addition to copyright and designs, company presentations on a website (as well as the website as a whole) may also be protected. The permission of the author may be required for distribution, reproduction or modification. The author of the presentation is the person who put it together (not necessarily the entrepreneur for whom it was created).

Make sure that the copyright rights to use the website are contractually transferred to you if you hire a company that specialises in this. Alternatively, the client cannot sell or substantially modify the website without the author’s permission.

You must obtain the author’s permission to distribute copyright-protected works (such as books, music, software, databases) via the internet. It does not matter whether the distribution is free of charge or subject to a fee.

Trademark and name rights

If a registered internet domain is used to identify the company, it may be protected by trademark and name law. In this case, another party cannot register it as a domain, even in a slightly modified version.

Common law protects trademark owners from having their domain names used as domain addresses without their consent. Before registering a domain, you should conduct a thorough name and trademark search to avoid misunderstandings.

Contact Herfurtner Law Firm

The lawyers at Herfurtner Law Firm can help you with all legal issues related to e-commerce and mobile commerce, including competition law, advertising law, trademark law and information technology law. In addition, the Herfurtner law firm offers:

legal assistance in disputes with competitors and online customers,
legal advice on new distribution methods,
assistance with copyright issues relating to texts and photographs
as well as examinations of the successful inclusion of terms of use (AGB).

E-commerce law basics: Which laws apply online