LG Berlin: Multiple contracts require separate order buttons

Introduction and explanation of the button solution

The convenience of online shopping has undoubtedly revolutionized our buying habits. With just a few clicks, we can order products from all over the world and have them delivered directly to our doorstep. But this convenience also has its pitfalls. Sometimes unclear or misleading website designs lead consumers to make unwanted purchases or enter into contracts. This can happen if the function of a button on the website is not clearly marked and consumers cannot clearly see that they are making a purchase or concluding a contract with one click.

In order to avoid such situations and strengthen consumer protection in the digital space, the so-called “button solution” was introduced in Germany. This statutory provision, which is contained in § 312j para. 3 of the German Civil Code (BGB) sets out clear requirements for the design of order buttons in online commerce. It obliges online merchants to clearly indicate that a click on a certain button triggers a purchase or the conclusion of a contract.

The button solution is intended to ensure that consumers know exactly what they are doing when they click on a button. It is designed to prevent consumers from falling into a cost trap by unintentionally buying products or subscribing to services. By clearly labeling order buttons, consumers can make informed decisions and have more control over their online activities.

The ruling of the Berlin Regional Court and its impact on consumer protection

In a remarkable ruling of March 23, 2023 (Ref.: 67 S 9/23), the Berlin Regional Court made an important clarification in the area of online commerce and consumer protection. The case centered on a consumer who concluded two different contracts in parallel during an online order – on the one hand, the booking of a flight and, on the other, a Prime membership. The court found that such parallel conclusion of two contracts is only effective if the consumer has clicked two separate order buttons. This ruling strengthens consumer protection in online commerce and underlines the importance of the button solution and the obligations under § 312j para. 3 BGB.

In detail, the case involved a consumer who booked a flight on the defendant’s online portal and at the same time took out a Prime membership. However, the defendant had not provided separate order buttons for the two contracts. Instead, the contracts were concluded via the “Continue” and “Continue with Prime for free” buttons. The court found that this design met the requirements of § 312j para. 3 BGB is not met. This is because, according to this provision, the entrepreneur must provide a separate button for each individual contract concluded electronically, which must meet the requirements of § 312j para. 3 BGB corresponds.

The court also emphasized that even merely conditional payment obligations of the consumer – as was the case with the Prime membership – fall within the scope of §§ 312j para. 2 and 3 of the German Civil Code. This means that the button solution also applies in cases where the consumer has the option to terminate a contract free of charge within a trial period.

This ruling has far-reaching implications for online commerce and strengthens consumer protection by increasing the requirements for transparency and clarity in online contracting. It highlights the need for online retailers to design their processes and systems to meet legal requirements and protect consumer rights.

The legal arguments of the judgment and their significance

The ruling of the LG Berlin emphasizes that the entrepreneur has fulfilled his obligation to provide information according to § 312j para. 3 BGB must be met separately for each contractual relationship. This means that a separate button must be provided for the conclusion of each individual contract, which must meet the requirements of § 312j para. 3 BGB corresponds.

The court also clarified that a “prime membership” contract obligates the consumer to pay even if it could have been terminated free of charge within a short-term trial period. This is because the consumer’s payment obligations, which are merely conditional, also fall within the scope of §§ 312j para. 2 and 3 BGB.

This ruling has far-reaching implications for online commerce and strengthens consumer protection by increasing the requirements for transparency and clarity in online contracting. It highlights the need for online retailers to design their processes and systems to meet legal requirements and protect consumer rights.

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.