Information obligations for online retailers and service providers

Since February 2016, online retailers and companies that offer online services to consumers must refer to the EU’s Online Dispute Resolution (ODR) platform. If this reference is missing in the imprint or if the link to the platform is not clickable, site operators face penalties.

Article 14(1) of the ODR Regulation for online retailers states:

“In the Union, traders established who enter into online sales contracts or online service contracts, and online marketplaces established in the Union, provide an electronic link to the ODR platform on their websites. This link must be easily accessible to consumers. In addition, traders established in the Union who enter into online sales contracts or online service contracts provide their email addresses.”

The outcry at that time was hard to miss. This was less due to the short time between the announcement and the effective date than the fact that the EU platform was not yet ready, and it was foreseeable that it would not be completed by the deadline of February 9, 2016. Many did not see the point or the importance of linking to a “non-existent” website – the cease-and-desist industry was ready to pounce.

By now, most affected websites should have integrated the reference. If not, it’s time to act and also implement the new regulations from the Consumer Dispute Resolution Act (Verbraucherstreitbeilegungsgesetz – VSBG) that have been in effect since February 1, 2017.

 

Additional Information Obligations as of February 1, 2017

The law was already passed in April 2016. Nonetheless, many companies still do not meet the information obligations even today – a year after it became known and almost three months after it came into force.

For which companies the Consumer Dispute Resolution Act applies is regulated in §36 General Information Obligation:

(1) An entrepreneur who maintains a website or uses general terms and conditions must inform the consumer, easily accessible, clear, and understandable

1. to what extent he is willing or obliged to participate in dispute resolution procedures before a consumer arbitration board, and

2. point out the competent consumer arbitration board if the entrepreneur has committed himself to participate in a dispute resolution procedure before a consumer arbitration board or is obliged to participate due to legal provisions; the notice must include information on the address and website of the consumer arbitration board and a declaration by the entrepreneur to participate in a dispute resolution procedure before this consumer arbitration board.

 

Paragraph 2 of the law also stipulates that the above information must appear on the entrepreneur’s website and, if available, in their general terms and conditions.

Exempt from the information obligation are entrepreneurs who employed ten or fewer people on December 31.

 

Information Obligation Applies to (Almost) Everyone – Even if Not Participating

All entrepreneurs for whom this exception does not apply must inform the consumer, preferably in the imprint, whether they participate, are obliged to do so, and which dispute resolution body is responsible in their case. If the company uses general terms and conditions (AGB), this information must also be included there.

The devil is often in the details: even if the company does not participate in dispute resolution procedures, it must inform consumers of this! This law applies to everyone except the companies mentioned above with a maximum of ten employees.

 

Take Action!

Often, it is only a quickly done addition to your imprint and your AGB. But this can protect you from severe warnings and cease-and-desist orders.

Those who cater exclusively to commercial customers are not subject to the information obligation.  

Information Obligation After a Dispute Arises

The general information obligations described above assume that there is no dispute yet. Should a company and a consumer already be in dispute and this cannot be settled, VSBG §37 Information After a Dispute Arises applies:

(1) The entrepreneur must inform the consumer about a competent consumer arbitration board, including its address and website, if the dispute over a consumer contract could not be settled by the entrepreneur and the consumer. At the same time, the entrepreneur must state whether he is willing or obliged to participate in a dispute resolution procedure before this consumer arbitration board. If the entrepreneur is willing or obliged to participate in the dispute resolution procedure of one or more consumer arbitration boards, he must specify this board or these boards.

(2) The notice must be given in text form.

This means that in this case, it is no longer sufficient to indicate this on the website. The consumer must be informed in writing, i.e., by email or letter, which arbitration board is responsible (including address and website) and whether the company participates in an arbitration procedure.

It is unclear when the company must inform the consumer during the course of the dispute. Therefore, the information should be provided to the consumer immediately in case of any complaint.