Guest orders obligatory in the online shop?

Do you allow your customers to place guest orders in your online shop? No? Then a decision of the Data Protection Conference (DSK) is very interesting for you.

Who or What is the Data Protection Conference?

The Data Protection Conference consists of the independent data protection authorities of the Federation and the Länder. It has the task of safeguarding and protecting fundamental data protection rights, achieving a uniform application of European and national data protection law and jointly advocating for its further development. This is done in particular through resolutions, decisions, guidance, standardisation, statements, press releases and specifications.

In brief: In the DSK, the data protection authorities coordinate on specific legal issues.

Resolution of the Data Protection Conference (DSK) of 24.03.2022

And it is precisely this DSK that has decided in a recently published resolution, which was apparently already passed by the DSK on 24.03.2022, that there is a fundamental obligation for online retailers to provide guest access in an online shop (Click here for the resolution of the DSK: Information from the DSK - Data protection-compliant online trading via guest access (PDF)). According to the decision, it is inadmissible to force the customer to attach a customer photo.

Is there an obligation to allow guest orders in the online shop?

We do not share the legal opinion of the DSK and the supervisory authorities. Our legal opinion is also shared by numerous colleagues. We also have considerable doubts that the courts will follow the legal opinion of the FSC and thus of the supervisory authorities. However, there are no court decisions on this issue yet. The legal question is therefore currently unresolved in court.

However, it can be assumed that the supervisory authorities will implement the DSK's decision and will now object to online shops that do not allow guest orders.

If your online shop is objected to by a supervisory authority because of a missing possibility for guest ordering, you can deal with the supervisory authority and discuss the legal question of whether guest ordering is necessary in your online shop or not. In our experience, it is also possible to discuss such legal questions with the supervisory authorities and also convince them legally. However, you then first have a formal procedure with a supervisory authority and if the out-of-court "attempts at persuasion" do not work, a legal procedure.

Our recommendation

If you do not allow your customers to place guest orders in your online shop, you should consider, despite all the justified criticism of the DSK's decision, whether you should allow your customers to place guest orders in your online shop at least until the legal issue has been clarified in court. In this way, you can avoid a possible dispute with the supervisory authority responsible for you.

If, on the other hand, valid business reasons speak against the introduction of guest ordering in your online shop and you therefore refrain from introducing guest ordering, we will support you in the context of a possible legal dispute with a supervisory authority.

Please do not hesitate to contact us if you have any questions on the above topic.


GoldbergUllrich Lawyers 2022

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law

Specialist lawyer for industrial property protection