Hildesheim District Court: Attention when labeling order buttons!

In a ruling of 07.03.2023 (6 O 156/22), the Regional Court of Hildesheim decided that an order button with the inscription “Pay by credit card” or “Pay by SOFORT transfer” does not comply with the requirements of the so-called button solution according to § 312j para. 3 BGB corresponds. This legal regulation obliges the entrepreneur to design the ordering situation in such a way that the consumer explicitly confirms with his order that he commits himself to a payment. If the order is placed via a button, it must be legibly labeled with nothing other than the words “order subject to payment” or an equivalent unambiguous wording. At the same time, failure to comply with this regulation constitutes a violation of competition law pursuant to Section 3a UWG.

Background of the judgment

The defendant, the operator of a digital platform on which it sells a variety of products and services such as books, seminars and similar offers to both consumers and entrepreneurs, has designed the ordering process on its platform in such a way that the binding, chargeable order is triggered by clicking on the button “Pay with … Pay” or “Pay…” button triggers the binding, chargeable order.

This means that by clicking on this button, the customer confirms his decision to purchase and commits to pay the indicated price. This process is a common procedure in online retailing that aims to make the buying process as simple and straightforward as possible for the customer.

However, the court stated in its ruling that this particular design of the ordering process does not meet the requirements of § 312j para. 3 BGB corresponds. This paragraph of the Civil Code (BGB) stipulates that the entrepreneur must arrange the ordering situation in such a way that the consumer explicitly confirms with his order that he is committing himself to a payment. If the order is placed via a button, this obligation is only fulfilled if this button is legibly labeled with nothing other than the words “order subject to payment” or with an appropriate unambiguous wording.

In this particular case, the court ruled that the wording used by the defendant, “Pay with … Pay” or “Pay…” is not sufficiently clear to meet the requirements of the law. Therefore, it was ruled that the defendant’s ordering process violated the law.

Details of the judgment

In the proceedings initiated by VZVB, the Hildesheim Regional Court found that the button labeled “Pay with … bezahlen” or “Bezahlen …” can also be understood by the consumer in such a way that with this click he initially only confirms the means of payment with which he would like to “pay”, but does not yet trigger an order. Therefore, the labeling of the button used by the defendant lacked the necessary unambiguity to convey the contractual obligation and the obligation to pay. In addition, the court found that in another product offer, the defendant did not provide the information about the conclusion of a subscription contract, the total price of the subscription contract, the conditions of cancellation and the minimum duration of the obligations immediately before placing the orders in direct connection with the order button and in a highlighted manner, which also violated § 312j para. 2 BGB in conjunction with. Article 246a § 1 sentence 1 no. 4 EGBGB.

The Regional Court also emphasized that the information on the conclusion of a subscription contract, the total price of the subscription contract, the conditions of cancellation and the minimum duration of the obligations must be provided immediately before the orders are placed, in direct connection with the order button and in a prominent manner. Failure to comply with these requirements also constitutes a violation of § 312j para. 2 BGB in conjunction with. Art. 246a § 1 p. 1 No. 4 EGBGB.

Effects of the judgment

This ruling underscores the importance of the precise design of order buttons in online retail. Companies must ensure that their order buttons comply with legal requirements to avoid competition violations. It is therefore advisable to regularly check the labeling of order buttons and adjust them if necessary. In addition, the ruling shows that companies must also ensure that they clearly display all relevant information, including the terms of the contract and the total cost, before the final order is placed.

It is particularly noteworthy that the Federation of German Consumer Organizations (vzbv) took action against the provider Digistore24 in these proceedings. This means that all companies using Digistore35 for their online sales should be especially vigilant. You should check your order processes carefully to ensure that any order buttons may not have been installed manually and are therefore illegal.

This ruling serves as an important reminder that legal compliance is crucial in online commerce. Companies that fail to comply with these requirements risk not only legal consequences, but also a loss of trust among their customers.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.