Numerous online shop operators wish to sell their products exclusively to businesses for various reasons. Consequently, they aim to exclude consumers. It is largely established in jurisprudence and literature that restricting an internet offering – and thus an online shop – to businesses is generally permissible.
The only question is – how?
Numerous court decisions have already addressed the question of how an online shop – exclusively for businesses – must be designed to ensure an effective restriction to businesses (e.g., OLG Hamm, judgment of February 28, 2008, File No. 4 U 196/07; OLG Munich, decision of September 2, 2009, File No. 6 W 2070/09; BGH, judgment of March 31, 2010, File No.: I ZR 34/08; BGH, judgment of April 29, 2010, File No. I ZR 99/08; OLG Hamm, judgment of September 20, 2011, File No. I-4 U 73/11; LG Berlin, judgment of February 9, 2016, File No.: 102 O 3/16).
The Higher Regional Court (OLG) Hamm (Oberlandesgericht Hamm, judgment of november 16, 2016 – File No.: 12 U 52/16) recently had to decide a case in which the defendant offered paid access to a database with over 20,000 recipes on its website. The defendant in this proceeding also sought to restrict its offer to businesses and exclude consumers. The restriction was implemented by displaying a text on all subpages of its website under the headings “Information” and “Notes”, which was intended to clarify that the offer was restricted to businesses.
The text read as follows:
“The use of this offer is exclusively permitted for companies, traders, associations, craft businesses, authorities, or self-employed freelancers within the meaning of Section 14 of the German Civil Code (BGB). By clicking the “Register Now” button, you will incur costs of EUR 238.80 plus VAT per year (12 months at EUR 19.90 each) with a contract term of 2 years.“
On the subpage “*internet address*/register”, users could register by providing their contact details. This page featured text fields to be completed for salutation, first name, last name, company, street and house number, postal code and city, country, and email address, with all details, except for the company name, being mandatory fields without which the registration process could not be completed.
Furthermore, above the “Register” button, there was a selection option with the text “I accept the General Terms and Conditions and expressly confirm my commercial user status”. If this field was not checked by the user, a notice appeared: “Please confirm the GTCs”. In § 1 of the GTCs, the conclusion of contracts was exclusively reserved for businesses, and consumers were excluded from use.
In the first instance, the Dortmund Regional Court (Dortmund Regional Court, Judgment of 23.02.2016 – 25 O 139/15) convicted the defendant, stating that its website violated the consumer protection provisions of § 312j BGB. Specifically, the required clear and understandable instruction regarding the existence and conditions of a right of withdrawal was missing. Furthermore, there was no order confirmation button that was clearly legible and labeled with nothing other than the words “order with obligation to pay” or a corresponding unambiguous formulation. The defendant had not effectively restricted its online offering to businesses and freelancers. This is because the information obligations associated with consumer contracts are only waived if the provider exclusively concludes contracts with other businesses or at least an intention to contract only with businesses is clearly evident from the offer. The notices used by the defendant did not meet these requirements. According to the Dortmund Regional Court, due to the specific design of the offer page, they were easily overlooked by consumers and thus not sufficiently transparent and clear.
The defendant appealed this decision to the Hamm Higher Regional Court (OLG Hamm). However, the OLG Hamm upheld the decision of the Dortmund Regional Court and dismissed the appeal.
In its reasoning, the OLG Hamm stated that while a restriction of the online offering to commercial entities/businesses is possible due to the principle of private autonomy, it is nevertheless required that this limitation of the offer be expressed clearly and transparently and cannot be overlooked or misunderstood by an average recipient.
According to the OLG Hamm, this requires not only clear notices at appropriate places but also that the exclusion of contracts with consumers is ensured to a significant extent (OLG Hamm MMR 2012, 596, para. 31; OLGR Hamm 2008, 673, para. 31 f.; NJW-RR 2002, 1634 f.). Furthermore, it is required that the concluded legal transaction is actually attributable to the independent purpose of the contracting party; if the stated trade and the type and quantity of the sales item do not show a clear relation to each other, a consumer transaction should be assumed in case of doubt (cf. Hönninger in jurisPK-BGB, 7th ed. 2014, § 355 marginal no. 12)).
The court did not consider the defendant's corresponding notices in the case at hand to be sufficient.
According to the OLG Hamm, the defendant's notices did not establish either a sufficiently clear and transparent restriction of the offer or an adequately secured exclusion of consumer transactions.
The restrictions under “Information” and “Notices” were located at the edge of the page, were not highlighted, and only visible by scrolling, thus relatively easy to overlook.
On the registration page, the restriction to businesses was indeed highlighted in bold, but the eye-catcher was rather the registration area, which was even highlighted in color. An average user would not readily infer from this notice that consumers are prohibited from using the service.
While the checkbox for the GTCs referred to the text “I accept the General Terms and Conditions and expressly confirm my commercial user status.”. Typically, however, a consumer would only expect to accept GTCs at this point. Therefore, the additional requirement to confirm commercial user status could be overlooked – without highlighting. If the GTCs were not accepted, only a notice appeared stating that the GTCs should be confirmed, whereas the “Commercial User Status” was not queried and did not have to be explicitly confirmed. The confirmation given merely indirectly through accepting the GTCs was also insufficient because consumers regularly do not read GTCs in detail and a restriction contained therein should not be readily expected.
The question that online shop operators repeatedly ask themselves in this context is how an effective restriction of the online offering is now possible?
Unfortunately, the OLG Hamm did not provide this information.
In accordance with the OLG Hamm's decision, it can at least be concluded that it is not sufficient to merely state in the GTCs that an online offering is only provided for businesses. Furthermore, according to the OLG Hamm, a mere notice on every webpage is not sufficient on its own. Unfortunately, the OLG Hamm did not explicitly formulate the requirements for a clear and transparent restriction of an online offering. However, some prerequisites for the exclusion of consumer transactions can be derived from the decision.
Thus, the restriction to businesses must be highlighted in color and bold, and prominently visible as an eye-catcher – not at the edge – on every webpage, without requiring scrolling. Furthermore, it is likely necessary that a notice, highlighted in bold and color, must be provided in the upper section of every webpage, stating that the online offering is exclusively directed at businesses. The registration and/or ordering process should also conclude with the user explicitly accepting their commercial user status by clicking a separate confirmation checkbox. A sole reference to General Terms and Conditions is not sufficient. Moreover, an online shop operator should also request relevant data that only a business can provide. This may include a VAT ID. The company name should also be a mandatory field. It may also be advisable, to prevent competition law warnings, for online shop operators to also fulfill the information obligations required only for consumers as a precautionary measure in the shop.
As the OLG Hamm's decision demonstrates, it is challenging to effectively restrict an online offering to businesses. Therefore, all businesses wishing to restrict their online offering to specific groups of people are strongly advised to consult specialized lawyers regarding the concrete implementation of such a restriction, who can provide advisory support in implementing a limitation of their online offering.
For any inquiries regarding this topic, the undersigned is at your disposal.
Goldberg – Attorneys at Law 2017
Email: info@goldberg.de
