New requirements for the order overview

A. Facts of the case

The subject of the case was a product from an online retailer that was labelled as a “silk scarf” but was actually made of polyester. The actual material composition of the scarf was indicated on the product detail page under the “Description” tab. On the order overview or check-out page with the “Buy now” button, however, only a clickable product image was highlighted in colour and linked back to the product page.

B. LG Berlin II: Breach of information obligations

The LG Berlin II found this to be a breach of information obligations in online sales under Section 312j (2) BGB in conjunction with Art. 246a Section 1 (1) No. 1 EGBGB. According to this, “the essential characteristics of the goods” must be stated “immediately before the consumer places his order”. The LG Berlin II comes to the infringement by ultimately doing nothing more than adding up the “one and one” of previous case law.

The Munich Higher Regional Court had already ruled that the material of an item of clothing is to be classified as essential information within the meaning of Art. 246a § 1 Para. 1 No. 1 EGBGB, as it can have a considerable influence on wearing comfort, durability and warmth and thus significantly influences the purchase decision.

It is now also recognised in case law that a link does not automatically meet the requirements of Section 312j (2) BGB. “Immediately before the consumer places his order”, according to BGH case law, information is provided if it can be seen on the same page on which the order process is completed.

The LG Berlin II therefore draws the consequences here and also considers the material properties of clothing to be a necessary indication on the order page.

C. Outlook

The judgement seems worse than it actually is. It is true that it breaks with a previously untouched standard, which consisted of linking the product image on the order page with a link to the product detail page. However, it is left open in the case law whether all links are illegal per se. The BGH has expressly not yet addressed the question of how to deal with a link that leads directly to the mandatory information. This could be implemented either with a separate subpage or with an HTML element on the product page that can be referred to with an individualised link. A solution with an element that only appears when hovering over it with the mouse would also be conceivable.

In the end, the LG Berlin II’s hands were probably tied here. One could have wished for a stronger consideration of the proportionality clause in Art. 246a § 1 para. 1 no. 1 EGBGB (“to the extent appropriate for the means of communication and for the goods and services”). However, since it was about the desktop version of the website and the material is probably the central information for garments, this would certainly not have led to a different result. The impression of over-regulation is created here by the fact that, due to the established standard design, it can probably be assumed that practically all consumers now know that they can still click on the product image for the details of the product during the ordering process. However, Section 312j (2) BGB offers little flexibility for this changed consumer concept for reasons of consumer protection. The fact that the subject of the judgement was a product with an obviously misleading title probably also had an effect.

For the online sale of clothing, it must therefore be borne in mind in future that the customary design method to date entails the risk of a warning under competition law. However, it would be rash to completely change the entire ordering process because the question of when “the essential characteristics of the goods” have a sufficient spatial-functional connection to the ordering process has not yet been finally clarified.