When terminating a contract using the new termination button in online commerce pursuant to Sec. 312k of the German Civil Code [Bürgerliches Gesetzbuch, BGB], the customer may not be required to first enter his customer password. This has now been decided by the Regional Court [Landgericht, LG] of Cologne in a recent decision (29 July 2022 - 33 O 355/22).

The LG Cologne upheld the applicant's complaint that the respondent's website did not offer sufficient options for terminating telecommunications contracts.

A quick reminder: The legislator added the new Sec. 312k BGB with effect from 01 July 2022. This stipulates that an entrepreneur who offers online on a website the conclusion of consumer contracts that establish a continuing obligation, such as subscriptions or mobile and internet contracts, now has to provide a so-called "termination button". Clicking on this button should lead to a confirmation page where the consumer must provide information about the type of termination, the contract to be terminated and, in particular, his identity. Only after this has been entered is the termination itself completed via another button.

The legislator wanted to make it just as easy for consumers to terminate a contract as it is for them to conclude it. In other words: concluded with one click, terminated with one click. Of course, neither is that simple. For this reason, the legislator is trying to strike a balance between a simple termination and data economy on the one hand, and protection against abuse and certainty for the entrepreneur on the other.

The effect this has in the law is that the information to be provided by the consumer for the termination (Sec. 312k (2) BGB) constitutes both a minimum and maximum requirement for the entrepreneur. The entrepreneur may therefore not demand additional information that may not be readily available to the consumer and thus makes a simple and straightforward termination more difficult. This is also how the LG Cologne cites it from the relevant explanatory memorandum to the law: In the court's opinion, the request for the customer's password constitutes a hurdle that is not provided for in the provision, which is likely to prevent the customer from terminating the contract, as the password might not be accessible to him. At the very least, it must also be possible [for the customer] to identify himself by providing names and other common identifiers such as home address, e-mail address and the like for the termination.

The legislator did indeed have such a narrow interpretation in mind. However, this has fuelled the criticism that the entrepreneur is left entirely alone with its responsibility to protect the customer from abuse. Entering the password, namely, is precisely the way in which the verification of the customer can be ensured. The mere retrieval of data that may also be known to third parties, on the other hand, harbours a high potential for misuse. Although the law requires that the consumer also provides information about the contract to be terminated (i.e., usually the contract number), in practice, however, it is often more time-consuming for the consumer to look up the contract number than it is for him to log into his customer account. It also often requires a great deal of effort on the part of companies to modify and adapt their established verification mechanisms accordingly.

In particular, foreign companies whose business model provides for the conclusion of online contracts with consumers should take note of the Regional Court's decision. They should critically check whether a "termination button" that is geared towards the German market is available and correctly implemented on their websites, for the provision in Sec. 312k BGB is a national peculiarity of German civil law that is not based on a European consumer protection provision.

Inadequate implementation could result in warnings – the consumer protection authorities are already active.

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