The year 2022 holds numerous legal changes in store for online retailers. In our webinar on February 10, legal expert Melvin Dreyer from Händlerbund shed light on the most important legal changes and answered your most pressing questions. In today’s blog post, we summarize his answers once again so that you too are (legally) well prepared for the current year.
Does the cookie consent have to be requested again and again via the consent tool each time the website is visited or is a one-off request sufficient?
When cookies are used, information is stored or retrieved on a user’s device. Section 25 TTDSG generally requires the consent of the data subject for this, with an exception for strictly necessary cookies. In practice, consent is usually obtained via consent tools, such as banners that appear on the website.
Just as not every website requires such a consent tool across the board – this depends in particular on the use of cookies requiring consent and the data processing that takes place – it is not possible to say across the board how often a cookie banner must be “played” or a “new” consent must be obtained. This always depends on the scope of the consent already given. For example, the duration of a cookie can be decisive. It is important to note that if a cookie requiring consent is to be used, this may only be done with the proper consent of the data subject. As a rule, consent tools are played automatically. Users of such tools can contact the provider of the tool if they have any questions about the specific implementation.
Packaging Act, Electrical and Electronic Equipment Act - does this only affect B2C or also B2B?
Both the Packaging Act and the Electrical and Electronic Equipment Act will undergo some changes in 2022. The question of whether there are differences in the legal situation between B2B and B2C is justified.
In fact, a distinction must be made here, whereby a generalized approach is not expedient. In the area of packaging law, for example, the type of packaging and where it accumulates as waste is decisive for the question of which obligations apply with regard to the specific packaging. Packaging subject to system participation is often referred to as B2C packaging, as it typically accumulates as waste with private end consumers. However, these private final consumers also include the so-called equivalent sources of waste generation, which include branches of freelancers, hospitals or restaurants (see Section 3 (11) VerpackG). A customer review of the specific packaging and its function (manufacturer, distributor, etc.) is therefore necessary here. The ElektroG also imposes different obligations depending on the specific situation. The Händlerbund provides a free e-book on the sale of electrical appliances.
By the way: A take-back obligation may also exist for mere distributors such as many online retailers of electrical appliances, § 17 ElektroG. Retailers may also have to take back devices other than those they have sold. There is also more information on this in the Händlerbund e-book.
As a businessmen, do I also have to label my own listings or product presentations as advertising when I post on social media?
If a social media post has a commercial background, it obviously has a different quality for recipients and can influence their business decision. The following is important for entrepreneurs in the case of a commercial act: The commercial purpose of a commercial act must be disclosed in accordance with Section 5a (6) UWG if this is not immediately apparent from the circumstances and the failure to disclose it is likely to cause the consumer to make a business decision that they would not have made otherwise.
Whether a post about your own products or listings must be labeled as advertising depends on the individual case and, above all, on how recognizable the circumstances are for potential recipients. More information on the advertising labeling of social media posts can be found at onlinehaendler-news.de.
New notice and contract extension periods from March 1, 2022 - does this also apply to old contracts?
For various so-called continuing obligations between consumers and entrepreneurs, new requirements will apply from March 1, 2022 with regard to the agreement of minimum contract terms, the duration of tacit contract extensions and the notice periods. This change results from the Fair Consumer Contracts Act and only applies to contracts concluded after the effective date. The previous legal situation continues to apply to contracts concluded before this date. It may therefore make sense for consumers to conclude new contracts in order to benefit from the new legal situation.
With regard to telecommunications contracts, a new and partly comparable legal situation has also applied since December 2021 – with the difference that the change also extends to previously concluded contracts. You can read more about this in an article on onlinehaendler-news.de.
Are exhibits to be regarded as used goods?
Neither German nor European law provides a clear legal definition for the term “used goods” or the question of when goods are considered “used”. However, as retailers can shorten the warranty period for used goods, for example, the classification has considerable practical relevance. A ruling by the Higher Regional Court of Hamm (judgment of 16.01.2014, ref.: 4 U 102/13) shows that an exhibition item or Refurbished goods cannot necessarily be classified as used goods. In summary, used goods must therefore already have been put to their usual use, i.e. “put into use”.
Would you like more information on the legal changes in 2022? Then we recommend our recording of the webinar from February 10, where we go into further topics.
