The proceedings before the Higher Regional Court of Hamburg dealt in particular with the question of whether a cancellation button must also be offered on the platform of a contract broker such as Verivox. In addition, the court specified the requirements for the wording of the termination button. What significance the ruling has for companies that offer continuing obligations.
Consumer advice center sues over cancellation button
The plaintiff, the German Federation of Consumer Organizations and Consumer Associations (vzbv), brought an action against an energy company that enabled consumers to conclude electricity and gas supply contracts on two different platforms. The following points were objected to:
- There was no clearly recognizable cancellation button on the "verivox.de" platform that allowed the consumer to cancel the contract online.
- Although there was a button on the "lichtblick.de" platform for giving notice of termination, it was labeled "Send notice of intention to terminate", which in the plaintiff's opinion did not meet the legal requirements.
Legal requirements according to § 312k BGB
According to Section 312k of the German Civil Code (BGB), companies that enable the conclusion of contracts on their website must offer a clearly recognizable cancellation option in the form of a so-called "cancellation button". This obligation ensures that consumers who have concluded a contract online can also cancel it online. The following requirements are placed on the termination button
Immediate accessibility:
The consumer must be taken directly to a confirmation page on which he can declare the termination when the termination button is clicked.
Clear labeling:
Both the cancel button and the confirmation button on the following page must be clearly and unambiguously labeled to signal to the consumer that the cancellation is immediate. The wording "Cancel now" is considered the standard; alternatively, only wording with the same clear meaning is permitted.
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Reasons for the decision of the OLG Hamburg on the termination button
The court ruled in favor of the plaintiff on both points and ordered the defendant to cease and desist from the actions complained of. The key points of the decision (5 UKI 1/23):
- Missing cancelation button on the verivox.de platform
The court found that the obligations under Section 312k BGB also apply if the contract is concluded on a third-party platform as long as the entrepreneur creates the conditions for the conclusion of a contract by operating the site. The defendant could not successfully rely on the fact that the platform is operated by a third party. Rather, the decisive factor is that the consumer begins the conclusion of the contract on this platform. The court pointed out the obligation to also provide a termination button on the third-party platform."Accordingly, the so-called termination button pursuant to Section 312k (1) and (2) BGB must be placed on the website 'via which' consumers are enabled to conclude a contract in electronic commerce. This is at least also the website on which the consumer begins the ordering process from his point of view", according to the OLG.
- Unclear wording of the termination button on the lichtblick.de platform
In the court's opinion, the wording "Send notice of intention to terminate" did not meet the requirements of Section 312k (2) sentence 3 no. 2 BGB. This wording could give the consumer the impression that the termination had not yet been finally declared. The court clarified that the consumer must be clearly informed that clicking on the button leads directly to the termination of the contract."The button may only be labeled with the words "cancel now" or a correspondingly clear formulation. Rigid standards apply and the linguistic leeway for the entrepreneur is very narrow. Formulations that do not contain the word 'now' appear problematic. In addition, formulations that falsely suggest the finality of pressing the termination button, such as 'Really terminate?' or 'Complete termination process', do not appear to be permissible," writes the OLG in its ruling.
Significance of the ruling for companies
The ruling has far-reaching consequences for companies that offer continuing obligations via digital channels. The most important effects:
- Clear provision of the cancel button
Companies must ensure that a termination button is easily accessible and available at all times on every platform on which an e-commerce contract can be concluded. This applies even if the platform is not operated by the company itself but by a third party. Entrepreneurs are obliged to draft contractual agreements with third-party providers in such a way that all requirements of Section 312k BGB are met.
- Clear and understandable formulations
The wording of the termination and confirmation buttons must be clear and understandable for the consumer. Terms such as "cancel now" are mandatory, and alternative formulations must not leave any ambiguity about the legal consequences of the cancel button. Companies have little leeway in their choice of wording. - Liability risks and compliance
Violations of the requirements of Section 312k BGB can result in severe fines, such as the one imposed in this case of up to €250,000 per violation. Companies should regularly check their contract sections and the termination options on them for conformity and adjust them if necessary. Missing or unclear termination buttons can not only have legal consequences, but can also have a lasting negative impact on customer trust.
The ruling clarifies the rigid requirements for termination options in e-commerce and sets clear standards for the design of termination buttons. For companies that offer contracts via the Internet, it is essential to comply precisely with these legal requirements in order to avoid the risk of warnings and sanctions. A close examination and, if necessary, adaptation of the digital contract sections is therefore essential.
Source: Judgment OLG Hamburg 5 UKI 1/23
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