6th December 2018
The Holiday Season can be a reflective time for online retailers. In order to not lose focus on this beautiful time of the year, retailers should prepare well for the onslaught. That includes preparing legally. Christmas returns, sweepstakes and discounts can lead to sales, but also bring with them one or two legal stumbling blocks. Among other things, we can explain what needs to be taken into account.
Delivery times and delivery guarantees
Christmas deliveries are often a tightrope act. Logistics companies, overwhelmed by masses of parcels, often face difficult weather conditions and tight delivery deadlines. After all, parcels have to arrive on time for Christmas. Despite that, a binding and exact delivery time is obligatory in online retail. Phrases such as “expected”, “circa” or “as a rule” are not allowed and their use may constitute an infringement of competition law. Likewise, “available until Christmas Eve” is an invalid specification. After all, customers must know when the package will reach them. A better specification would be “Delivery by 24/12.” Further, if certain goods are no longer available, this should also be immediately apparent to customers.
This can also be accompanied by a punctual delivery guarantee. Clearly inform the customer about the contents and any guarantee limitations (no foreign deliveries, validity only for consumers, last day of order, etc.). Of course, consequences must also be indicated, such as partial reimbursement of the purchase price or the issuing of a voucher. But even without a special guarantee, retailers must ensure that the specified delivery date is met – difficult weather conditions are no excuse.
Christmas greetings – email advertising
Legally, email advertising is a sensitive issue. Data protection generally requires the proven consent of the party being advertised to. Ideally, this is done using the double opt-in procedure. where Consent is first given by the interested party and then confirmed via an emailed link. Existing customers who have given their email addresses may also receive advertising for similar products to those they have already purchased. Customers may, however, object to this and must also be made aware of the right to object to advertisement.
However, advertising does not only exist if the shop or the goods are advertised directly. Even messages with no direct advertisement can generate attention and thus be considered advertising.
Sweepstakes and Advent calendars
Online Advent calendars are an especially popular marketing tool during the Holiday Season. Content varies greatly: from recipes to vouchers and discount coupons to prizes. However, as soon as content is directly commercially relevant, i.e. providing the customer with advantages or profits, competition law also becomes relevant. Clear and unambiguous conditions of participation are then a must, and the prizes should be randomly drawn from among all eligible participants. In addition, GDPR provisions must be accounted for. Participants must be informed about how their data is handled, and only for the purposes for which participants have consented.
Right to return
Sometimes gifts don’t hit the nail on the head. German customers for example are of course entitled to the statutory right of withdrawal. And during the hectic Holiday Season, many customers are happy to have a return policy in place that gives them some time to return products. However, they must also be sufficiently informed about their right to return. This can be done, for example, through the general terms and conditions, or a subpage which links to an action banner or the start page. The conditions should also be carefully considered, as this special service may also result in economic losses for retailers. Here it may be advisable to indicate a period for the execution of orders to which the right to return refers. Also, improperly used or damaged goods can be excluded, or and not covered by the right of withdrawal. In general, the conditions of the return shipment, the repayment, and the exact deadline for returning goods must be pointed out.
In order to avoid warnings under competition law, it should also be stated that the special right to return does not expressly restrict the statutory right of withdrawal and the statutory liability for defects. In order to not create confusion, it is therefore advisable to not use the same conditions as for legal revocation. After all, the customer can only exercise rights that are already provided by law. This could then be interpreted implicitly as advertising, which is not permitted.
Händlerbund can help!
Legally protecting their Internet presences causes an enormous amount of additional effort for many online retailers. Händlerbund is your competent partner for legal questions. Using the discount code Queue#HB, Queue-it customers will receive a 3-month discount on the Händlerbund membership package of their choice in the first year!
About the author
Melvin Dreyer has been part of the legal editorial team since mid-2018. He has worked as a journalist during his law studies and taught his legal expertise in related courses. Now, as a legal expert, he regularly reports and advises on legal news and issues in the world of ecommerce.