According to the Nuremberg Higher Regional Court (OLG Nürnberg), a single order button labeled 'Buy Now' is insufficient if the consumer is expected to make a binding contractual declaration pertaining to both a purchase agreement and a long-term contractual relationship.
How many order buttons are required in an online shop?
The defendant operates an online shop selling groceries, cosmetics, and household goods. However, placing an order necessitated customers simultaneously entering into a paid membership with the defendant, at least following a trial period. At the conclusion of the ordering process, a single order button labeled “Buy now” was present. There was no distinct order button for an explicit contractual declaration pertaining to the membership.
The plaintiff, Verbraucherzentrale Baden-Württemberg e.V., ultimately issued an unsuccessful cease-and-desist letter to the defendant and subsequently filed a lawsuit before the Regensburg Regional Court (LG Regensburg). The action concerned the order button issue and other legal infringements by the defendant. The LG Regensburg, inter alia, enjoined the defendant from maintaining only a single order button labeled “Buy now,” the confirmation of which would constitute a binding contractual declaration by the consumer for both the purchase agreement and the membership.
The Higher Regional Court (OLG) Karlsruhe dismissed the defendant's appeal, lodged, inter alia, against the aforementioned injunction, as unfounded.
What are the requirements for structuring the ordering process in an online shop?
The OLG Nuremberg determined that the ordering process and contractual offer devised by the defendant contravene § 312j para. 3 p. 1 BGB.
The OLG Nuremberg underscored that specific business models in the online domain are not precluded, and it is indeed feasible to conclude multiple contracts of differing types concurrently. However, this cannot be achieved in the manner implemented by the defendant.
Does each contractual agreement necessitate a distinct order button?
According to the OLG Nuremberg, a consumer's click on the “Buy now” order button merely confirms the paid order for products, and does not simultaneously signify the conclusion of a paid membership.
The legislative explanatory statement for § 312j para. 3 p. 1 BGB indicates that consumers must be made aware of more than just a fundamental payment obligation. Rather, in accordance with the legislator's intent, the requisite notification of a payment obligation must pertain to every contract to be concluded by the confirmation action. The stipulated clear indication of the payment obligation on the order button aims to safeguard consumers from incurring a payment liability without full awareness of this fact.
The ordering process and the order button designed by the defendant fail to satisfy these requirements. The labeling of the order button with the designation “Buy now” does not adequately convey to the consumer that they are simultaneously entering into an additional paid contract in the form of a long-term contractual relationship. The term “buy” does not signify the establishment of a legal relationship aimed at a continuous exchange of services (cf. MüKoBGB-Wendehorst, 8th ed., Munich 2019, § 312j BGB para. 29).
What are the implications of this decision for online retailers?
The OLG Nuremberg's decision constitutes an individual case. It remains to be seen whether the defendant will lodge an appeal. Should the OLG Nuremberg's decision become legally binding, it could serve as a precedent for other courts.
Should your business model involve combining the conclusion of purchase agreements with the establishment of a long-term contractual relationship, prudence is warranted in light of the OLG Nuremberg's decision. The OLG Nuremberg did not provide guidance on how the ordering processes for such business models can be structured in a legally compliant manner. The OLG Nuremberg merely ruled on what is impermissible in the present case.
Presently, the most secure approach would entail a clear separation between the conclusion of purchase agreements and the establishment of long-term contractual relationships. Alternatively, it might be feasible to design the ordering process and the order button such that it unequivocally communicates to the consumer that, in addition to the purchase agreement, they are simultaneously entering into an additional paid contract in the form of a long-term contractual relationship. However, this latter option is susceptible to errors and should only be contemplated following meticulous legal consultation.
We are pleased to offer our advisory services across the entire spectrum of IT/IP and data protection law, ensuring your business model achieves or maintains legal compliance.
Source: Higher Regional Court (OLG) Nuremberg, Judgment of May 29, 2020, File No. 3 U 3878/19
Prior Instances: Regional Court (LG) Regensburg, Judgment of October 1, 2019, File No. 1 HK O 358/19
GoldbergUllrich Attorneys at Law 2020
Julius Oberste-Dommes LL.M. (Information Law)
Attorney-at-Law and
Specialist Attorney for Information Technology Law
