20 December 2002

Jan-Peter Ohrtmann

There are various provisions in German law which place an obligation on the provider of electronic services or electronically distributed products to provide certain information to users of their products or services. The provisions are drafted to protect (potential) contractual partners, especially consumers, but also the general public. Issues are questions of fairness, data protection, fair competition, transparency or general public interests. This article presents an overview about the legal framework.

1. Website

The information required on websites depends on the product offered. If it is a service that is designated for individual use, the German Act on the Utilization of Teleservices (“Teledienstegesetz” or “TDG”) will be applicable. Services that are aimed at the general public are subject to the States Treaty on Media Services (“Mediendienste-Staatsvertrag” or “MDStV”).

The provision of teleservices requires according to Sect. 6 TDG the following information to be provided to users:

  • the name and the official address under which it is established (legal persons shall identify their authorized representative);
  • details for rapid electronic contact and direct communication (at least e-mail-address and telephone, probably also facsimile);
  • if the teleservice is offered or rendered as part of an activity requiring government licensing, information on the responsible supervisory agency;
  • if registered, register and registry number;
  • if member of a specific chamber, details about the chamber the provider belongs to, legal destination of the profession and the country in which the occupational designation was issued;
  • if assigned, VAT identification number.

The information must be easily recognizable, directly accessible and constantly available. However, the courts have not yet decided what this means in practice. In order to comply with these provisions, it is necessary to ensure that a clearly identifiable Link to this information appears on each web page. From the intent of the legislator it seems to be sufficient if this information is accessible from the homepage only, provided that the user can reach the homepage from any page of the website with one click.

The States Treaty on Media Services contains the same provisions for media services in Sect. 10 para. 1 to 3 MDStV. Additionally for the editorial part, it is required that the contact details for the person responsible for the content are also included.

2. E-mails

The courts have also not yet decided about the information obligations in e-mails. There are opinions that e-mails have to fulfill the same requirement that apply to business letters. According to Sect. 37a, 125a, 177a Commercial Code, Sect. 80 Companies Act; Sect. 35a Limited Liability Companies Act, these require the following details to be included. Name of the company, legal form, business location, court of registry court and registry number, board of directors and, if applicable, name of the chairman of the supervisory board. To be on the safe side this information should also be included in the E-mail. It cannot be predicted at the moment that view German courts will take on this subject.

3. Pricing and Product Information

In e-commerce, it is important to ensure that the correct information is given about the price and its parts. If an offer is also directed to the consumer, the provider has to inform in detail about the end price including VAT excluding any discount taken into account. This requirement is set out in Sect. 2 para. 1 Price Statement Order (PAngV). Pursuant to the decision of the Court of Appeals Frankfurt/Main, a website that informs about the details of the product on a page that is just linked with the page that shows the product is not in compliance with this provision (MMR 2001, 71 et seqq.).

Besides the specific rules about pricing information, a provider may not create an unfair practice pursuant to Sect. 1 Unfair Competition Act and not be misleading according to Sect. 3 Unfair Competition Act. This refers especially to give-aways, discounts and presents.

4. Contracting and Billing

Numerous obligations refer to the information in contracting. They are in particular laid down in Sect. 312 b et. seqq. Civil Code and too voluminous to be elaborated separately. Before entering into a contract according to Sect. 312 e Civil Code and the provisions of the Informations Order (InfoV) the provider has to provide the purchaser with certain information e.g. about technical steps, how to correct the data etc. After having entered into the contract, the provider has to confirm the order and provide the possibility to save the content of the contract. If a consumer is party to the contract, Sect. 312 c Civil Code and the provisions of the InfoV require that the provider basically informs the purchaser about all major aspects of the contract. That this requirement is handled strictly is shown in a decision of the Court of Appeal Karlsruhe dated March 27, 2002 (WRP 2002, 849).

On electronic bills, the provider has to put down his tax number pursuant to Sect. 14 para. 1a, para. 2 sent. 2 VAT Act.

5. Data Protection

Finally one major asset of E-Commerce is the deep knowledge about the habits of the consumer. Compliance with data protection provisions is essential to be able to use the data lawfully. The extensive use of personal data generally requires the consent of the data subject. In this context the provider has to explicitly tell the data subject what data is collected and how it is used (Sect. 4 para. 1 Teleservice Data Protection Act (“Teledienstedatenschutzgesetz” or “TDDSG”) or Sect. 12 para. 8 MDStV).