The electronic processing of business transactions via the Internet has revolutionized communication between companies (B2B), but also between companies and consumers (B2C). The broad area of e-commerce includes the simple website as a company presentation as well as the online shop solution with thousands of products and differentiated ordering processes. As lawyers, we have already provided support for both extremes and assist our clients not only with the initial design but also with any necessary changes.
For example, an online store must meet the legal requirements for data protection and include appropriate notices in its privacy policy and terms and conditions. It must also comply with consumer protection laws and provide appropriate notices in its terms and conditions and on its website.
A lawyer can help to create and review order processes, user logins, terms and conditions and privacy policies, and ensure that they meet legal requirements. They can also help to clarify legal issues related to various aspects of online commerce.
The area of conflict
The legal examination of e-commerce websites on the internet often has to reconcile the sometimes extensive legal requirements with the usability, which has a significant influence on the commercial success of the website. In addition, security is an important factor for both visitors to the website and the site operators. As specialized attorneys for IT law, we seek to balance these and the many other influencing factors for our clients.
It is important to observe the legal requirements. These requirements can change quickly and it can be difficult to always stay up to date.
Nevertheless, it is important to be fully informed about the legal requirements and to comply with them in order to avoid violations and minimize potential liability risks. A lawyer can help clarify legal issues and assist in complying with legal requirements.
Combining areas of legal expertise
We see our particular strength in combining technical knowledge of the possibilities for designing an online shop with the knowledge of a specialist lawyer in information technology law and, at the same time, our knowledge in the field of competition law, since two of our specialist lawyersare also specialized in intellectual property law. The latter area also includes competition law and domain law as part of trademark law.
Both areas of specialization are closely related and affect many aspects of online commerce. IT law, for example, regulates issues of data protection and liability in the event of technical malfunctions. Advertising law, on the other hand, deals with the rules for the design and placement of advertising, especially on the internet. It can be useful to be well versed in both areas of law to ensure that the online store is legally sound and that no violations of data protection or advertising regulations are committed.
Avoid expensive written warnings and establish fair competition
As far as an e-commerce project involves a publicly accessible website, the provider should be prepared for the fact that competitors and other bodies appointed to enforce competition law will carry out a legal review. Legal advice can help to avoid warnings here, which could otherwise be expensive.
It is possible for an online shop operator to receive a warning if they violate legal regulations. For example, competitors, consumer associations or other interest groups can issue warnings if they believe that the online shop is violating legal regulations. If you receive a warning, you should take it seriously and immediately take care of the complaint. However, this is usually no longer sufficient. The admonisher usually insists on the submission of a cease-and-desist declaration.
It is possible that you, as the operator of an online shop, will be asked to issue a cease-and-desist declaration if you violate legal regulations. A cease and desist declaration is a declaration in which you agree to refrain from certain actions in the future. It may be issued, for example, if you violate distance selling or advertising regulations.
If you have to issue a cease-and-desist declaration, you should take it seriously and adhere to the obligations it contains. For example, a cease-and-desist declaration may contain:
- The obligation to refrain from certain actions in the future.
- The obligation to remove certain content from the website.
- The obligation to change certain terms and conditions or privacy policies.
A cease and desist declaration is usually binding and can be enforceable. It is therefore important to abide by the obligations contained therein in order to avoid possible liability risks. A lawyer can assist in formulating and reviewing a cease-and-desist declaration and help to take appropriate measures to avoid future violations.
Of course, we also help our clients to ensure that competitors comply with the law in the same way as our clients. Ultimately, no market participant should suffer any disadvantage, especially when it comes to rights of withdrawal, for example, the exercise of which by consumers usually results in high costs for e-commerce providers.
Our specialist lawyer always agrees the scope of our audit with the client. The audit may include, for example:
- fulfillment of the legal information requirements
- granting of rights of withdrawal and instructions in this regard (in particular to avoid very long withdrawal periods),
- the complete and proper imprint,
- a customized data protection declaration,
- the examination of advertising statements for their admissibility under competition law
- and much more.