Online business is booming. An almost limitless reach, countless marketing opportunities and low operating costs are attracting more and more entrepreneurs to distance selling and also promise lucrative expansion prospects for retailers who have previously only operated in bricks-and-mortar stores. However, online business is subject to strict legal requirements and extensive information and labeling obligations. The background to this is that customers who are unable to physically contact either the goods or the retailer before concluding the contract should be able to make as informed a purchase decision as possible.
In this guest article, IT-Recht Kanzlei provides online new sellers with a checklist for implementing the most important legal obligations in their own online store.
I. The integration of proper legal texts
The first step in securing any online store is the proper integration of legally binding legal texts in the form of general terms and conditions, a revocation policy, a privacy notice and a legally compliant legal notice.
Legally compliant and complete Terms and Conditions (T&Cs) are essential for your own online store.
Terms and conditions regulate the basic contractual rights and obligations when concluding contracts and form a legal basis for all online orders.
T&Cs fulfill two important functions:
For the latter reason, GTCs in online business are also referred to as “GTCs with customer information”.
Consumers generally have a statutory right of withdrawal for online purchases.
This right of withdrawal allows them to initiate a reversal of the contract within 14 days of the delivery of the goods without reason and thus to reclaim the purchase price in exchange for the return of the purchased item.
It is mandatory for online stores to provide information about this basic consumer right of withdrawal in the form of a withdrawal policy in the online store.
The withdrawal policy must describe the method of exercising the right of withdrawal and the legal consequences of withdrawal.
At the same time, the withdrawal policy must also provide a sample form that the consumer can fill out and send to the online retailer to exercise their right of withdrawal.
Because personal buyer data is processed in every online store when orders are accepted, it is also essential to have a GDPR-compliant privacy notice.
This privacy notice must provide detailed information about every form of data processing that visitors to the store are exposed to, in accordance with the legal model.
On the one hand, this includes data processing in connection with orders, but also, depending on the circumstances, data collection that is independent of this, such as through certain tracking or analysis services or the sending of newsletters.
Every business website and therefore every online store requires an easily recognizable, directly accessible and permanently available legal notice.
The legal notice is the central source of information about the store operator and must contain at least the following information:
Furthermore, information about European dispute resolution initiatives must also be provided in the legal notice.
On the one hand, store operators must refer to the EU Commission’s online dispute resolution platform with a clickable link (wording such as: “Platform of the EU Commission for online dispute resolution: https: //ec.europa.eu/odr”).
On the other hand, they must provide information on whether they are willing or obliged to participate in dispute resolution proceedings before a consumer arbitration board.
Even if store operators are never legally obliged to participate, the information must appear in every legal notice.
As the legal texts mentioned above are the elementary legal information of every webshop, they must be stored in a central location.
It is advisable to set up a separate category with the title “Legal” in the footer of the store, where the individual documents are linked with the corresponding designation.
The IT law firm's legal text protection package for store operators
IT-Recht Kanzlei offers retailers who sell goods via their own store suitable legal texts that are protected against warnings at a low price.
These include:
- Terms and conditions
- Cancellation policy
- Privacy notice
- Legal notice
Over 80 samples and instructions complete the legal text package.
The Good: Merchants who want to get started with JTL-Shop 5 receive the legal texts free of charge for 3 months (with a 12-month minimum contract term).
The legal texts are also suitable for small businesses and can also be used in any number of online stores of the same company in parallel.
Further information and an ordering option can be found here.
II Payment and shipping conditions
Under current law, consumers must be informed about the available payment methods and delivery conditions at the latest at the start of the order process.
Online retailers ideally implement these information obligations in the store by setting up a page entitled “Shipping and payment conditions” and also setting up a separate menu item in the “Legal” section (see above).
The conditions should contain information on the following circumstances, broken down into shipping information on the one hand and payment information on the other:
If free shipping is offered in whole or in part, this must also be indicated in the shipping and payment conditions.
It is essential to give the consumer the opportunity to view the delivery area and the specific shipping costs before initiating the ordering process. Otherwise, the consumer could be tempted to enter into the ordering process even though he would not have done so if he had been aware of all the essential circumstances. The disclosure of delivery restrictions and shipping costs only during the ordering process itself or even after the order has been placed is not legally permissible.
III Correct price information
The applicable law requires store operators to provide price information in a transparent form.
On the one hand, this obligation is characterized by the fact that store operators must inform consumers that their prices include VAT and that additional shipping costs may apply.
This obligation applies everywhere in the store from where consumers can place products in the virtual shopping cart.
The note “incl. VAT plus shipping costs” must appear in the immediate vicinity of the respective total price.
The word “shipping costs” must link to the page with the shipping and payment conditions (see above under II.).
A special price transparency obligation exists if products are sold in the store by weight, volume, length or area, i.e. if the total price is calculated according to the unit quantity (e.g. for liquids, cosmetics, food, goods sold by the meter, etc.).
In this case, online retailers must also include the price per unit (base price) with each price indication for the products concerned.
If the net quantity of the product is 250 g or ml, the base price can be indicated per 100 g or ml.
Otherwise, the price per kilogram, liter, meter or square meter must always be given as a reference.
This obligation must be fulfilled not only on store pages from which the product can be placed in the shopping cart, but applies wherever price information is provided in the store. This also includes product overview pages and product lists.
A special feature applies if the store operator is treated as a small business under tax law and therefore does not pay VAT.
In this case, VAT may not be shown in the store.
Small businesses are therefore not allowed to display the otherwise necessary mandatory notice “incl. VAT”.
Instead, small businesses should state their small business status on every product page from which the product can be added to the shopping cart with the following notice:
“All prices quoted are total prices (plus shipping costs where applicable). Due to small business status according to § 19 UStG, VAT is not shown on the invoice .”
IV. General product information obligations
On product pages in the online store from which consumers can add products to the shopping cart, online retailers are required by applicable law to provide certain general and item-related information.
On the one hand, online retailers must point out the “essential characteristics” of each product in this sense.
Which characteristics of the product are “essential” depends on the circumstances of the individual case and must be assessed according to what information the consumer absolutely must receive about the product so that he can evaluate the listing and compare it with competing offers.
In summary, essential characteristics are therefore those properties without knowledge of which an average and reasonably thinking consumer who has gained a certain overview of the market in question would not purchase the product.
Essential characteristics can be, for example:
In order to fulfill the information obligation, the essential properties must be listed as part of the product descriptions.
The second general information obligation requires store operators to specify delivery times for the respective product.
The time period within which the product reaches the consumer must therefore be specified.
It is essential to avoid “approximate” information or other vagueness, because the consumer should receive concrete information about the delivery date in accordance with the law.
It is permissible and customary to state “Delivery time: X-Y working days”.
However, the period must be calculated in such a way that the maximum delivery time is not actually exceeded. However, if the product is delivered faster than stated, this is harmless.
Note on delivery times for several shipping countries:
If shipping is made to several countries and different delivery times therefore apply per country of delivery, the delivery times for each country of delivery must be specified. If the information exceeds the scope of presentation on product detail pages due to its comprehensiveness, the delivery times for other countries can be removed from stock in the shipping and payment conditions (see II. above). It should then be stated on the product page:
“Delivery time X-Y working days (DE – abroad different)”, where “abroad different” links to the shipping and payment conditions.
V. Correct design of the order page
The applicable law also sets out certain requirements for the design of the ordering process.
These mainly concern the order overview or “checkout” page, from which the consumer can place a binding order.
In addition, online retailers are required to present the key product features (see IV. 1. above) again on this page. These must always be directly and immediately visible; a mere link back to the product page is not sufficient.
The order button must also have a special design. Its labeling must clearly indicate to the consumer that they are entering into a paid contract when they click on it.
As a model formulation, the law provides for the designation “Order now fee-based”.
However, any other wording that makes the payment obligation clear, such as “Buy now”, is also permitted.
Contrary to popular belief, it is not necessary for consumers to confirm the validity of the GTC or other legal texts and their acknowledgement by means of a check box.
Rather, the GTCs themselves become part of concluded contracts through their integration into the web store.
However, if you are asked to acknowledge and accept the legal texts again via a check box, this is of course permissible.
VI Post-contractual information obligations
Following a purchase in an online store, the law requires the retailer to send the customer a confirmation.
On the one hand, the customer must receive immediate confirmation of receipt of the order by e-mail (so-called order receipt confirmation).
On the other hand, online retailers are required to send customers the general terms and conditions and cancellation policy on a durable data medium after the order has been placed. Here, retailers have the choice of attaching the legal texts in PDF form to a confirmation email or enclosing them in printed form with the shipment.
It is practical to automatically add the legal texts in PDF form to either the order confirmation or a subsequent order confirmation. This ensures that the retailer does not forget to send the documents later.
VII Legally compliant newsletter dispatch
There are numerous options for carrying out advertising campaigns in the online store. The most relevant option for online retailers is sending newsletters.
However, the sending of newsletters is only permitted if the recipient has expressly and voluntarily consented in advance.
In the online store, consent must be obtained in three steps:
In addition to the registration field for the newsletter, a consent text must be formulated that informs the interested party about what they are consenting to by entering their email address and how their email address will be used.
The consent text must be clearly linked to the newsletter registration form.
Consent must be given by the interested party through an active action, i.e. either by clicking on a “login” button or by activating a check box that has not been preselected.
A sample text for the consent text could be as follows:
“Yes, I would like to be informed at regular intervals by email about current listings and promotions on … [name of online store]. I can revoke my consent at any time with effect for the future. I have taken note of the privacy notice with further details.”
The privacy notice of the store (see above under I.) should be linked under “Privacy notice”, in which detailed information about the newsletter dispatch is to be provided. The collection and use of email addresses for newsletter purposes is one of the most common ways of processing personal data.
In a second step, the so-called “double opt-in procedure” must be observed. This requires that the newsletter subscriber first receives an activation email after entering their email address, in which they must confirm receipt of the newsletter via a link.
No newsletter may be sent without activating the link.
The background to this is that otherwise anyone could enter any email address, including third-party email addresses, for the newsletter. However, if the newsletter dispatch were to be initiated immediately, the actual consent of the email account holder could be lacking, meaning that the newsletters would be illegal spam.
The double opt-in procedure ensures the online retailer that the person logging in is actually the owner of the registered email address.
With regard to the content of newsletters, it should be noted that the applicable law also provides for mandatory information here.
1. imprint obligation
Newsletters are telemedia, so the same obligations apply with regard to the legal notice as in a web store. In many cases, newsletters are also to be regarded as business letters from a legal perspective, meaning that a mere link to the legal notice is not sufficient. The safest option is therefore to include the legal notice in full in the footer of every promotional email.
2. option to cancel
Another requirement that must be observed is the notice and the option to unsubscribe from newsletter advertising.
The background to this is that newsletter recipients must be able to revoke their newsletter consent at any time with effect for the future. They must therefore not be bound to a newsletter against their will.
Retailers are on the safe side if they provide the option to unsubscribe in every newsletter, e.g. in the footer by means of a link clearly labeled “Unsubscribe newsletter”.
VIII Registration and licensing of packaging
Often disregarded in online business, the Packaging Act imposes very important obligations.
With the aim of ensuring that packaging material is properly disposed of, it obliges manufacturers of packaging that typically accumulates at the end consumer,
The special feature is that online retailers are now considered manufacturers under packaging law for all packaging material that they fill with goods and sell to end consumers.
This means that online retailers are generally subject to registration, licensing and reporting requirements for the shipping packaging they use (i.e. all packaging that enables and/or supports shipping).
What at first glance sounds like an immense bureaucratic effort is in practice easier than expected.
All obligations can be fulfilled online.
Four steps must be followed:
First, online retailers must register with the Central Agency Packaging Register (ZVSR) at lucid.verpackungsregister.org.
After completing the registration process by entering the relevant personal data, an activation link is sent which is valid for 24 hours.
Click on the link to continue the registration process, in which further data is requested. Once all the details have been entered, the registration is confirmed and a registration number is issued.
Registration is free of charge.
After registration, a dual disposal system must be selected with which the shipping packaging material is licensed.
In Germany, there are currently eight system operators that are exempted nationwide. These are as follows:
When logging in to a dual system, license fees are charged for the proper disposal and recycling of the packaging material.
Bidders usually offer online solutions so that you can compare prices in advance.
When concluding an online contract with a system operator, the retailer directly licenses the packaging quantities that he plans to place on the market for the year.
The retailer must therefore know approximately what quantities of paper, cardboard or plastic he will put into circulation. Estimated quantities are sufficient.
The first message with the licensing is the so-called initial message.
This must be done once at the beginning and then at the beginning of each new calendar year so that the dual system knows how much it has to license.
In addition, year-end reports to the dual system must be observed: At the beginning of a new year, the quantity of packaging actually put into circulation in the previous year (the actual quantity) must be reported to the dual system.
The content of the year-end report, i.e. the actual quantity, should be the basis for calculating the initial report for the following year.
Example:Retailer A has been selling small electronic devices to end consumers in Germany since January 2020 and uses shipping packaging subject to system participation for which it registered with the ZSVR in January 2020 and which it licensed with the dual system “Der Grüne Punkt – Duales System Deutschland GmbH”.
After registration, A had to report the forecast planned quantity of packaging estimated for 2020 to Der Grüne Punkt in January 2020.
In January 2021, A is obliged to report the quantity of packaging actually placed on the market to Der Grüne Punkt in the form of the year-end report for 2020.
At the same time, A must also report the new planned quantity for 2021 to Der Grüne Punkt.
Once the quantities have been licensed with the dual system, they must then also be reported to the Central Agency Packaging Register via the LUCID portal.
This reporting obligation must be fulfilled by the online retailer personally and cannot be delegated.
The reporting obligations to the ZSVR via the LUCID database correspond in full to those to the dual system. The notification must therefore be submitted:
Example:A from the example above also had to report the initial quantity after registration with the ZSVR in January, which he reported to Der Grüne Punkt, via the LUCID database.
In January 2021, A is obliged to report the quantity of packaging actually placed on the market in 2020, which he reports to Der Grüne Punkt, via the LUCID database.
At the same time, A must also report the new planned quantity for 2021 (as reported to Der Grüne Punkt) via the LUCID database.
Care must be taken to ensure that the quantities declared to the dual system and to the ZSVR are identical in terms of the figures provided.
IX. Tip: Check eligibility for state funding
Many online retailers are not aware that the German government provides special funding pots for the digitalization of sales activities through the “Go-Digital” and “Digital Jetzt” programmes via the Federal Ministry for Economic Affairs and Energy.
Small and medium-sized enterprises and craft businesses that want to optimize their business processes with the help of digital solutions are eligible for funding.
In particular, the establishment of online stores and the development of online marketing strategies are also eligible for funding.
The “Go-Digital” program offers professional consulting services with a minimum co-payment, while the “Digital Jetzt” program offers non-repayable financial grants in the height of 35-40% of the investment costs.
More information on the application procedure, eligibility requirements and funding conditions can be found at
