Requirements for companies for the design of a cancellation button in view of the decision of the Regional Court of Koblenz of 07.03.2023 - 11 O 21/22

The obligations imposed by the legislator on traders regarding the cancellation button are regulated in Sec. 312k (2) BGB. This regulation stipulates that the cancellation button has to be clearly labeled with nothing other than the words "cancel contracts here" or with a corresponding unambiguous wording. The consumer has to be taken directly to a confirmation page. A following confirmation page has to contain a button which the consumer can use to submit the declaration of cancellation and which is clearly labeled with the words "cancel now" or a corresponding clear wording. The buttons and the confirmation page need to be permanently available and immediately and easily accessible.

Thereby the contract has to be concluded via a website. This refers to the internet presence of a trader which does not relate exclusively to commercial customers for the purposes relevant here. It is irrelevant whether the contract is concluded via a website operated by the trader himself or whether he uses a website hosted by another third party. The trader's obligations are limited to contracts between businesses and consumers for the establishment of continuing obligations. Continuing obligations are only those obligations that are characterized by an ongoing performance relationship. The decisive factor is the obligation to provide services on a continuous or recurring basis by the trader, in particular in the case of mobile phone contracts, energy supply contracts, subscription contracts, online gaming contracts, telecommunications contracts or contracts with fitness studios.

The obligations imposed on the trader do not apply to contracts for the cancellation of which a form stricter than text form is required by law. Furthermore, they do not apply to websites relating to financial services or to contracts for financial services.

An important decision for companies in this regard was issued by the Regional Court of Koblenz on March 7, 2023, in which it was determined that a trader is permitted to provide further cancellation options such as a cancellation assistant on its website in addition to a cancellation button that complies with the legal requirements (see Sec. 312k (2) BGB).

3.1 Facts of the case

The lawsuit was brought by a consumer protection association. The defendant was a telecommunications company. The subject of the dispute was the design of the confirmation page and button as part of the online cancellation procedure. The defendant also set up a "cancellation assistant" on its cancellation page above the confirmation surface with the cancellation button. The plaintiff claimed that the actual confirmation button was not directly and easily accessible within the meaning of Sec. 312k (2) sentence 4 BGB due to the advanced window of the cancellation assistant. He argued that consumers would notice the top button with the cancellation assistant first and that this would distract them from the more simple cancellation option that complied with the requirements of Sec. 312k (2) BGB. The plaintiff sued for injunctive relief against the upstream activation of a corresponding cancellation assistant.

3.2 Key statements of the decision

In the view of the Koblenz Regional Court, the design of the website with the cancellation assistant does not infringe Sec. 312k (2) BGB. The defendant provided the cancellation option required under Sec. 312k BGB, with the required confirmation page and confirmation button being available. These are also permanently available and directly and easily accessible. The fact that the additional "cancellation assistant" button is located on the same page above the cancellation form does not indicate otherwise.

In any case, it is permissible to provide an alternative cancellation option in addition to the list of questions provided for by the legislator, as the procedure provided for in Section 312k BGB is merely intended to provide the consumer with an additional way to declare the cancellation.

Even if a consumer notices the button of the cancellation assistant first, it is to be expected that they will recognize the difference between an immediate cancellation and a cancellation assistant. An "assistant" is clearly an aid and not a direct and fastest way to cancel the contract; just because it is higher up on the website does not mean that the rest of the website is not noticed by the consumer.

The aforementioned decision clarifies that, in addition to the mandatory confirmation button with the cancellation button, companies can also provide other options for cancellation, provided that the options are clearly distinguishable from one another. This opens up further options for companies as to how they can design their websites with regard to the options for canceling contracts.

It is important that the cancellation surface with a cancellation button remains permanently available and immediately and easily accessible despite other cancellation options. Particular attention should be paid to ensuring that the button is designed in such a way that an average and reasonable consumer can take note of it and understand and use its function and scope without any further difficulties. In addition, the button for any other cancellation option may not be designed in a more attractive way in order to attract more attention than the button with the cancellation button. It has to be visually clear that the cancel button is the quickest and easiest way to cancel.

Trader need to consider that their customers, in their role as consumers, may legally cancel the contract at any time and without observing notice in the case of infringements of Sec. 312k BGB. To avoid an undesired wave of cancellations for traders, it is advisable to check the design of the cancellation button according to the requirements of the legislator and the possibilities opened up by case law.