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E-commerce is a legal challenge for retailers. Trust our experienced lawyers to guide you safely through the jungle of legal challenges and avoid disputes from the outset, successfully enforce your own claims or defend against third-party claims.

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Lawyers for e-commerce

E-commerce refers to the sale of goods or services via the Internet. It offers enormous opportunities for online retailers as they can reach customers all over the world. At the same time, however, e-commerce also brings with it a wide range of legal obligations and challenges. Retailers must comply with numerous laws that stipulate numerous requirements – from consumer rights and information obligations to data protection regulations. Different requirements sometimes apply to sales to consumers (B2C) or commercial customers (B2B).

Every store operator – from small online retailers to large platforms – must fulfill legal obligations in order to avoid warnings, disputes or fines.

Differences between B2C and B2B

Für das B2C-Geschäft (Business-to-Consumer) greift ein hoher gesetzlicher Verbraucherschutz. Beim Verkauf an Verbraucher müssen Onlinehändler eine Reihe von Vorgaben des Fernabsatzrechts beachten. So haben Kunden ein 14-tägiges Widerrufsrecht. Händler sind verpflichtet, Kunden klar über ihr Widerrufsrecht zu informieren. Außerdem gelten weitere Informationspflichten im Zusammenhang mit dem Verkauf. So muss der Verbraucher z.B. vor Abschluss der Bestellung über wesentlichen Merkmale, Preise, Versandkosten und Zahlungs- und Lieferbedingungen informiert werden. Bei Verstößen drohen sonst Abmahnungen durch Verbände oder Mitbewerber.

Guarantees must also be communicated transparently – if there is a manufacturer’s or dealer’s guarantee, this must not lead to confusion on the part of the customer about the warranty that already exists. In particular, the impression must not be created that the guarantee is accompanied by a restriction of statutory warranty rights.

In the B2B sector (business-to-business), retailers enjoy more freedom, as the consumer protection regulations do not apply here. For example, there is no statutory right of withdrawal for the buyer. GTCs for B2B customers offer more freedom, e.g. the warranty for new goods can be contractually restricted between entrepreneurs. However, there are also numerous requirements in the B2B area that retailers must observe.

Labeling, information and registration obligations

Every online retailer must comply with numerous labeling, registration and information obligations. For example, every provider must provide a complete legal notice. In addition to the legal notice, a privacy policy is also required. Contract terms and mandatory information must also be provided.

In addition, there are registration obligations in certain areas: Retailers who sell electrical appliances to end consumers must ensure that the products are registered in Germany with the EAR Foundation in accordance with the ElektroG , otherwise sales are prohibited. Anyone who sells batteries or rechargeable batteries must be registered in accordance with the Battery Act and provide information on the return and disposal of batteries. The same applies to packaging: According to the Packaging Act, online retailers who send goods to private end consumers must register with the packaging register LUCID and ensure that they participate in a disposal system. These legal obligations for online retailers serve to protect the environment and consumers and can lead to high fines as well as warnings in the event of violations.

Contract law issues in e-commerce

Although general terms and conditions (GTC) are not required by law for online stores, they are generally indispensable in practice. They regulate the details of the contract with the customer – from payment and delivery to liability and warranty. It is important that the GTCs are formulated clearly and comprehensibly. Particularly strict GTC legal requirements apply in the B2C sector, but there are also clear limits to the admissibility of GTC clauses in the B2B sector. The use of GTC that violate the legal requirements leads to the invalidity of the respective clause. Ineffective clauses also constitute an infringement of competition law, which can be prosecuted with cease and desist letters.

Even seemingly harmless clauses can be problematic. For example, a severability clause, which provides that ineffective provisions are replaced by economically equivalent or analogous provisions, is inadmissible under German law. It is therefore advisable to have GTCs drawn up by experts and not to use third-party GTCs or sample texts that may not correspond to the current legal situation or may not be suitable for your own requirements.

Legal risks in e-commerce

Nahezu jeder Onlinehändler kennt und fürchtet sie: Abmahnungen. Schon kleine Rechtsverstöße – etwa ein fehlendes Impressum, eine fehlerhafte Widerrufsbelehrung oder unzulässige Klauseln in den Allgemeinen Geschäftsbedingungen – können Konkurrenten oder Verbraucherschutzverbände auf den Plan rufen. Meist hat dies dann kostenpflichtige Abmahnungen wegen Verstößen gegen das Wettbewerbsrecht, in denen der Händler zur Unterlassung aufgefordert wird, zur Folge.

Frequent reasons for warnings in e-commerce are:

falsche Preisangaben
Advertising with false promises (e.g. “guaranteed best prices” without this being true)
Violations of labeling obligations (e.g. no correct indication of VAT and shipping costs included)

The cease and desist letter is intended to clarify a legal violation out of court and help avoid legal proceedings, but can be expensive for the person receiving the letter. Online retailers should therefore proactively ensure that their store is legally compliant. This includes regularly updating the legal texts, implementing new changes to the law and seeking legal advice in case of doubt.

In addition to infringements of competition law, care must also be taken not to violate the laws of third parties. Trademark infringements are a typical risk: If a retailer appears under a sign that is too similar to a third-party trademark or uses protected brand names in the item description in an unauthorized manner, the trademark owner can take action against this. The sale of counterfeit products is of course illegal and will be rigorously prosecuted by trademark owners. Retailers should also exercise caution when advertising products – the use of trademark names in keyword advertising (e.g. in Google Ads) can constitute a trademark or competition law infringement.

Neben dem Marken- ist auch das Urheberrecht ein wichtiges Thema: Produktfotos, Texte, Grafiken – all das ist im Zweifel urheberrechtlich geschützt, sofern es nicht vom Händler selbst erstellt oder lizenziert wurde. Es ist nicht erlaubt, einfach Bilder von Google oder von Herstellerseiten ohne Erlaubnis zu kopieren. Solche Urheberrechtsverletzungen können ebenfalls teure Abmahnungen und Schadensersatzforderungen nach sich ziehen.

Received a cease and desist letter?

How to react

You are best advised to

cease and desist letter!

A cease and desist letter, e.g. for infringement of competition law, industrial property rights or copyright, should always be taken seriously, as it can have considerable legal and financial consequences.

Timely and professional advice is crucial in order to minimize risks and develop the right strategy.

Check cease and desist letter: Have the cease and desist letter legally checked. Not every cease and desist letter is justified, formally correct and abusive cease and desist letters are unlawful.
Observe the deadline: Be sure to respond within the set deadline to avoid further legal action such as an injunction or a lawsuit.
Check the cease-and-desist declaration: Do not sign a pre-formulated cease-and-desist declaration without legal advice. It could be too far-reaching and lead to considerable and lasting disadvantages. Once a cease-and-desist declaration has been signed, it is almost impossible to get rid of it and can result in considerable follow-up costs in the form of high contractual penalties.
Strategy: Regardless of whether the cease and desist letter is justified or not, you should consider the right strategy for responding to the cease and desist letter with professional support. Many aspects play a role here. For example, there may be formal errors or the submission of a cease-and-desist declaration may involve incalculable risks.

Data protection in online trading

Datenschutz ist spätestens seit Inkrafttreten der EU-Datenschutz-Grundverordnung (DSGVO) ein zentrales Thema im Online-Handel. Online-Händler verarbeiten eine Vielzahl personenbezogener Daten – Namen, Adressen, Zahlungsinformationen, E-Mail-Adressen – und müssen dabei strenge Regeln einhalten. Eine umfassende Datenschutzerklärung im Shop ist, wie bereits erwähnt, Pflicht. Darin muss transparent erklärt werden, welche Daten zu welchem Zweck (z.B. Vertragsabwicklung, Newsletter-Versand oder Tracking) und auf welcher Rechtsgrundlage verarbeitet werden. Betroffene haben Rechte wie Auskunft, Löschung oder Berichtigung ihrer Daten, auf die im Datenschutztext hingewiesen werden muss.

Tracking mechanisms that are intended to track user behavior and therefore regularly require consent can be a challenge. Such consent must be recorded and can be revoked by the data subject at any time.

Another risk under data protection law is IT security: the retailer must take appropriate technical and organizational measures to protect customer data (e.g. SSL encryption in the store, secure storage of passwords). Data protection breaches – whether due to hacker attacks caused by inadequate security or unauthorized data disclosure – can result in high fines in addition to reputational damage.

Industry-specific features

Additional special regulations (also) apply to certain sectors in e-commerce. Online retailers must be familiar with the sector-specific laws if they are active in these areas:

Food:
Strict labeling requirements apply to the mail order business with food. Retailers must provide all the information in the online store that would also be required on the packaging – for example, list of ingredients, allergens, best-before date (if relevant), origin of certain products, nutritional value tables, etc. Fresh or perishable foods are also excluded from the right of withdrawal, which must be pointed out to the customer in advance. It is also important to design the shipping conditions in such a way that the required cold chains are maintained. Anyone advertising with terms such as “organic” or health claims must comply with the relevant regulations (Organic Regulation, Health Claims Regulation).
Alcohol and spirits:
The protection of minors plays a decisive role here. In Germany, high-proof alcohol may only be sold from the age of 18, beer and wine from the age of 16. Retailers must ensure that they do not sell alcohol to customers under the above-mentioned age limits.
Tobacco and e-cigarettes:
The protection of minors also applies here. Tobacco products may only be sold to adults and the Youth Protection Act stipulates a two-stage age check (verification during the ordering process and age check on delivery). Tobacco advertising is also subject to strict restrictions – advertising for tobacco products is largely prohibited on the Internet. Online stores for tobacco products should therefore have a neutral design and only contain product information without promotional advertising. Health warnings (such as “Smoking can be fatal”) must of course be clearly visible, in line with the packaging regulations.
Biocides and chemicals:
Strict EU-wide rules apply to the sale of biocidal products (e.g. disinfectants, pesticides) or other chemicals. The products must be authorized and the online description must contain all the necessary warnings (hazard pictograms, H-phrases and P-phrases in accordance with the CLP Regulation). Some biocides may not be sold to laypersons – the retailer must therefore check whether the buyer requires a certificate of competence, for example. Violations can lead not only to warnings, but also to official sales bans. The same applies to medicinal products or medical devices (mail order permits are required here) – these sectors are heavily regulated.
Textiles and clothing:
Online retailers of fashion and textile products must comply with the provisions of the Textile Labeling Ordinance. The material composition must be stated for each item of clothing (e.g. “100% cotton” or a precise breakdown of the fibers). This information must already be included with the item in the online store, not just on the label of the delivered goods. There are also special markings: For example, terms such as “genuine leather” may only be used if it is actually leather – artificial leather must be labeled as such. And anyone selling children’s clothing must make sure that the ribbons and cords are strangulation-proof, for example.

These are just a few examples; additional rules apply depending on the product category. The multitude of legal requirements shows that online retailers should seek industry-specific information and advice on which regulations are relevant for their product range.

Sale on platforms

Selling via online platforms such as Amazon, eBay, Booking.com, AliExpress, Zalando or one of the many others is attractive for many retailers, as you don’t need your own online store and the platforms have a wide reach. However, as a retailer on such platforms, the rules of the respective online marketplace apply in addition to the statutory regulations.

Most platform operators are also very customer-friendly and less merchant-friendly. In the event of customer complaints or claims, payments to the retailer are often withheld and the retailer’s arguments are given less consideration. With Amazon, there is also the problem of central item management with an ASIN to which all retailers attach themselves. If this is changed or is incorrect, each of the retailers offering under it is liable.

In addition, offers via platforms also lead to economic dependencies that can threaten the economic existence of the company if accounts are blocked or the collaboration is terminated.

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Clemens Pfitzer, attorney, specialist attorney for intellectual property law, specialist attorney for IT law, partner, competition law, trademark law, patent law, design law, know-how protection, IT law, data protection law, copyright law, e-commerce

Dealing with customer reviews

Customer reviews are of great economic value to many retailers. So it’s no wonder that some providers try to help out. However, fake and bought reviews can be anti-competitive. Just as problematic: picking out only the good reviews and deleting the bad ones to show a distorted positive image – this can also be considered misleading advertising. As an online retailer, you must also tolerate critical reviews as long as they are legally permissible (i.e. do not contain any untrue facts or abusive criticism).

Online retailers must also provide transparent information on whether and how they check the authenticity of customer reviews. Consumer advice centers are very vigilant here and take action against store operators who do not implement these requirements.

Our expertise as lawyers in e-commerce

The large number of pitfalls highlighted shows: E-commerce law is an extremely complex and broad area of law that is constantly evolving. This requires experience and knowledge of current case law and new legislation.

We have a team of highly specialized and experienced lawyers and specialist lawyers in the field of e-commerce. As experienced lawyers in e-commerce, we provide legal advice and representation to companies, self-employed persons and online traders. Our services include

Avoidance of competition disputes by reviewing advertising measures
Defense against unjustified warnings, temporary injunctions and legal action
Durchsetzung wettbewerbsrechtlicher Ansprüche gegen Mitbewerber
Advice on product-specific requirements, pricing information and contractual clauses
Preparation of GTCs, consumer information, data protection declarations and other distribution contracts
Representation in disputes with platform providers