Noerr Team E-COMMERCE ENGLISH

Transcription

1 Noerr Team E-COMMERCE ENGLISH

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3 CONTENTS Preface 5 Web Shops & Online Distribution 7 Social Commerce 10 Mobile Commerce 12 Technical Realisation 13 E-Payment & Payment Procedures 15 Marketing & Data Privacy 17 Competition 19 International Aspects 21 Your Contact Partner 23 Our Team 24 Noerr 29 Awards 30 Offices 31 3

4 WELL STRUCTURED, EXTREMELY RESPONSIVE AND ORGANISED. Chambers Europe Awards for Excellence 2012 Client Service Law Firm of the Year

5 PREFACE Many companies use the Internet as their sole distribution channel. Even those companies which have previously used conventional methods of selling their products are increasingly supplementing their distribution structures via web shops. This trend applies to almost all industries not just durable consumer goods, but consumer non-durables such as foodstuffs and services. From an operational perspective, e-commerce solutions are extremely multi-facetted, and involve many legal aspects. When designing the web shop parts that are visible on the screen to the customer ( front-end ), the client has to comply with numerous legal requirements and information obligations ranging from revocation rights to specific requirements regarding presentation, labelling and advertising of products. These requirements must be appropriately integrated into the processes and menu navigation of the web shop. This requires careful legal planning and conception. The technical infrastructure required for operating the website is particularly critical in the field of e-commerce. During the build phase, software must be developed which is tailored to the specific structures and processes of the online offer. It is important to mitigate the risks of these often complex projects by appropriately drafting the contracts with the service providers and suppliers. During the run phase, which follows the development of the technical infrastructure, service providers mostly perform business-critical services, such as hosting and technical operation services, logistics and fulfilment. Again, it is important to ensure that the services perform reliably by drafting proper contracts and service level agreements in a legally binding and enforceable manner. Furthermore, e-commerce is an extremely dynamic field of business from active integration of user-generated content in the Web 2.0 mode to cross-platform offers and new business models. This highly dynamic and continual development requires specialised and creative legal advice. The establishment of our E-Commerce Team reflects the significance we attach to a sales channel which is important to many of our clients: it comprises our relevant expertise from the different fields of law concerned. This allows us to advise our clients in a specialised, integrated and efficient manner on all issues regarding e-commerce. This focus and specialisation enables us to be at the forefront of these dynamic developments and also to influence them. Dr. Daniel Rücker 5

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7 WEB SHOPS & ONLINE DISTRIBUTION Website/Front-end The most vital part of each web shop is the website it presents to customers ( front-end ). There are many legal issues and statutory regulations that must be compiled with in the design of web shops. The legal texts form the visible and thus vulnerable framework of the shop and the contractual relationship with the customer. Statutory regulations and complex, fast-moving court decisions must be observed meticulously. It is at this interface of distribution, IT and data protection law where we advise, amongst other things, on the following aspects: drafting legally secure general terms and conditions (T&Cs) and creating processes to validly integrate such T&Cs implementing pre-contractual as well as post-contractual acting and information obligations in accordance with the distance selling law, special regulations regarding electronic business, and telemedia law product presentation and order procedure issues (above all, product labelling obligations, pricing, payment terms, order and delivery confirmation) internationalisation / delivery abroad developing suitable data protection concepts which optimise the client s marketing activities within existing legal requirements and at the same time meet the requirements of the customer drafting legally required data protection policies and implementing concepts for consent management co-operations with third-party providers and trading platforms 7

8 Logistics & Fulfilment a of logistics is con-hoaged in e-commerce properly while in transit and arrives safely? do you ensure that your product is handled following aspects: Is your logistics partner able to respond adefolio and to seasonal peaks? quately to quick changes in your product ports contracts to meet ents of the company, t least the expecta-iractual insurance in- is particularly in the field of e-commerce that most manufacturers and distributors use logistics partners to store and ship their products. be accepted by the In theory, the logistics partner provides professional, individual, comprehensive and just-intime assistance to meet the expectations of the regulations to meet manufacturer, distributor and most importantly, and setting in train the customer. e event of a loss f warehouse logissportation In practice, however, the outsourcing of logistics services may have numerous issues which initially mostly go unnoticed. In the field r transportation law, of e-commerce, the logistics contract is an rnationally instrument with considerable potential. d risk management Accordingly, as far as the area of logistics is concerned, every company engaged in e-commerce should actively deal with the following aspects: drafting tailored logistics contracts to meet the individual requirements of the company, your products and not least the expectations of the customers drafting adequate contractual insurance instruments that will also be accepted by the logistics partners drafting sound liability regulations to meet individual requirements and setting in train reliable procedures in the event of a loss legal issues in the field of warehouse logistics, forwarding and transportation conflict resolution under transportation law, both nationally and internationally process optimisation and risk management 8 8

9 Dual Distribution Systems & Distribution Cartel Law Dual distribution systems are widespread particularly in the consumer goods industry. Manufacturers sell their products both through a network of independent trading partners as well as through their own retail business to the end consumers and thereby regularly use online and offline distribution structures, in the same way as their distribution partners do. Where luxury goods or products requiring particular consulting are concerned, the manufacturer may also establish a selective distribution network. Accordingly, the manufacturer may select its partners based on selection criteria focussing on quality and/or quantity. The most important distribution law and cartel law aspects concerning national and international dual distribution concepts include: integrating online distribution defining quality requirements admissible under cartel law for web shops in selective distribution systems ensuring data exchange admissible under cartel law through enterprise resource planning systems in dual distribution systems establishing limits admissible under cartel law to the influence exerted by manufacturers on independent trading partners in dual distribution systems (e.g. price fixing, sales campaign periods) 9

10 SOCIAL COMMERCE escribed above in Social commerce focuses on the customers s, in the area of social active participation on online platforms ( usergal issues deserve generated content ). le the platform sibility for user-. in the process of m ing unlawful contents ce and takedown progal user-generated plaint management deleting ratings asegarding cooperators and cial commerce The transition from a classic web shop to a social commerce platform is often fluid. Social commerce portals are used widely in practice by customers to rate dealers and their products by giving grades or writing their own text. In addition to the aspects described above in connection with web shops, in the area of social commerce the following legal issues deserve special attention: limiting as far as possible the platform operator s (co-)responsibility for usergenerated content, i.e. in the process of developing the platform dealing with and deleting unlawful contents entered by users: notice and takedown procedures to remove illegal user-generated content as well as complaint management procedures, such as by deleting ratings assigned advising on contracts regarding cooperations with portal operators and service providers in social commerce 10 10

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12 MOBILE COMMERCE size requires special Mobile commerce is a special form of e-commerce implementation of where contents are shown on mobile end devices s which are relevant (e.g. in smartphones) and in some cases also icularly regarding: through websites or smartphone apps tailored specifically to mobile end devices. g general business T&Cs), consents and Mobile commerce particularly facilitates location-based services for delivery of advertise- regulations ments or services. The mobile end device transtractual and posts to inform and act mits information on the current location of the ales law, special reguronic business and user to the platform operator who can then inform the user specifically about offers in the vicinity of his location. nd designing the orall, product labelling regulations within which mobile commerce con- It is important that the complex data protection yment terms, order cepts operate are used optimally for the concerned business ion) model. The relatively small screen size requires special measures for user-friendly implementation of the legal outline conditions which are relevant in e-commerce business, particularly regarding: drafting and integrating general business terms and conditions (T&Cs), consents and other data protection regulations implementing pre-contractual and postcontractual obligations to inform and act based on the remote sales law, special regulations regarding electronic business and telemedia law product presentation and designing the order procedure (above all, product labelling obligations, pricing, payment terms, order and delivery confirmation) 12 12

13 TECHNICAL REALISATION Software, Hosting, Clouds & Outsourcing Front-end Operators of online platforms typically use external service providers to create the front-end. Such services are often based on standard solutions offered in the market, which then simply need to be adjusted to the specific requirements of the online platform. Alternatively, the frontend may be completely programmed on an individual basis; in such cases, operators must typically rely on specialised external service providers. While the IT aspects of front-end creation are not prepared by legal experts, they are subject to a relatively high risk of running into problems of time and finances and/or even of failing entirely. Proper contract drafting handles such risks, secures proper performance of the services needed and provides the principal with investment security. Back-end The back-end of an online platform takes care of the technical operation of the platform as well the as processing of customer orders, including payment transactions and dispatch of goods. This again involves numerous interfaces with external service providers. The technical realisation particularly concerns the following services: technical hosting of software applications and databases of the online platform, including services regarding maintenance, servicing and support provision and adjustment of content management systems and enterprise resource planning systems processing customer payments, including required creditworthiness examinations logistics services, including dispatch warehouse and return management From a legal perspective the agreements with service providers must be drafted in a way that all the services and processes which are business-critical for the proper operation of the online platform are sufficiently secured through service level agreements. This creates clarity and lifts the motivation of the service provider to pay particular attention to the proper performance of its services. Also, in the event of online platform breakdowns, contractual regulations to compensate damage provide an important instrument to reduce business risks. 13

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15 E-PAYMENT & PAYMENT PROCEDURES Payment services contracts for e-payment To facilitate and accelerate customer payments on online platforms, classical payment procedures are adjusted and new payment procedures developed. This includes the following: purses with e-money function instant money transfer through online platforms credit card payment through encoded sites dialler procedure through third-party providers Due to the implementation of the European Payment Services Directive, effective as of 1 November 2009, the civil law provisions regarding payment procedures in Germany have been largely restructured. Where e-commerce providers are themselves involved in processing payments, they must draft their contracts to conform to this payment services law, which provides, amongst other things, for particular duties to give information, liability regulations and execution periods. Supervisory law applicable to payment services and e-money The above, as anchored in the German Payment Services Supervision Act (Zahlungsdiensteaufsichtsgesetz, ZAG) must be observed. This law becomes relevant in each case where such as through a marketplace platform monies are accepted for third-party providers and/or customers are given the opportunity to make payment by way of prepaid products (such as voucher cards). The commercial provision of payment services as well as the (even non-commercial) operation of e-money business requires a licence from the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht, BaFin) according to the ZAG, unless any exemptions apply. Any violation of this obligation to obtain such permission is punishable as a criminal offence. In any such case, BaFin can order immediate discontinuation of the relevant business and immediate winding-up of the concerned transactions. 15

16 uences of a breach Of of the payment services regulated in the ZAG icipants should examto whether they re-area of e-commerce: the following are of particular relevance in the AG or whether any of n the ZAG apply (and payment authentication services (i.e. issue of s). personalised security features such as PINs or acceptance and processing of payment attention to the fact transactions triggered by means of such ners of e-money issuservice providers personalised security features) do hey are subject to the ey Laundering Act. digitalised payment services (i.e. execution of payment services by the operator of a telecommunications or IT system) money remittance services (i.e. acceptance and forwarding of customer monies) In view of the grave consequences of a breach of the ZAG, e-commerce participants should examine their business model as to whether they require a licence under the ZAG or whether any of the exemptions provided in the ZAG apply (and if so under which conditions). In addition, they must pay attention to the fact that while distribution partners of e-money issuers and agents of payment service providers do not require a ZAG licence they are subject to the obligations under the Money Laundering Act

17 MARKETING & DATA PRIVACY The operation of online platforms requires the collection and processing of personal data of platform users. This typically applies, in addition to the information that is actively deposited in the user s customer account, to data regarding purchase and user behaviour. Techniques for reach measurement and web analyses support the widely established practice of specifically addressing customers in line with their needs and interests. In this context it is important to reconcile the objectives pursued from a marketing side with technical and, above all, data protection requirements, particularly the German Telemedia Act. The following issues require particular attention: developing a tailored data protection concept which makes optimal use of the legal possibilities in the interest of the platform operator and at the same time is accepted by customers drafting legally required data protection policies and implementing concepts for consent management legally correct use of social plug-ins and tools for reach measurement, while complying with the requirements of supervisory authorities developing target group-oriented advertising concepts (e.g. targeted advertising ), such as for marketing or for ads placed on the website legal structuring of CRM projects to analyse customer data to effectively address customers transferring personal data between different group companies, as well as international data transfer drafting affiliate marketing programmes and involving service providers 17

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19 COMPETITION Competition law aspects are also of significance for web shops. Firstly, competition law forms the framework for all marketing activities, be it advertising with price reductions shown by crossed-out prices, with guarantees or campaigns such as online auctions, price contests and sweepstakes or games of chance. Secondly, shop operators have to deal with competition law issues where they receive warning letters from competitors or consumer protection associations on the ground of (alleged) infringement of intellectual property rights, invalid T&Cs or intransparent eligibility requirements. Among the actions which ensure that marketing activities achieve their actual purpose and do not become a boomerang are the following: reviewing planned advertising campaigns as to their legal conformity legally safe drafting eligibility requirements for sales promotion campaigns, especially price competitions and sweepstakes strategically developing and implementing customer retention programmes avoiding liability for third parties contents, by considering this in the design of the website and drafting the user conditions of the website developing concepts for defending complaints and warning letters from competitors and associations on the ground of alleged infringement of trademark rights and copyrights as well as invalid general terms and conditions 19

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21 INTERNATIONAL ASPECTS The international nature of the world wide web offers companies of all industries and sizes ideal ways to directly access foreign markets. Many providers are not aware, however, that operating websites which are accessible from abroad may trigger obligations and liability risks under different jurisdictions. Even within the European Union there is no uniform and legally safe application of just one jurisdiction for a number of legal issues. This concerns different aspects in areas such as language requirements, T&Cs, data privacy, information and operation obligations, competition law, trademark and IP law, price regulations as well as designation requirements. Depending on the jurisdiction concerned, infringements may lead to unpleasant surprises, such as claims for damages, warning notices subject to penalties, administrative fines and/or contractual disadvantages, including even the invalidity of contracts. According to the current case-law of the European Court of Justice, a jurisdiction applies in certain legal areas at every place where the concerned website can be retrieved, such as in the area of personality rights as well as market behaviour and consumer protection regulations. As a result, the client s interests must then often be enforced in a foreign jurisdiction. In order to optimally mitigate such risks, the following legal aspects have to be observed in particular: issues of the applicable law including validity of choice-of-law and jurisdiction agreements in general terms and conditions (T&Cs) adjustment of foreign web shops to mandatory requirements of German and European law (above all, T&Cs, data protection statement, imprint, consumer information, order procedure as well as contract and return management) structuring contractual relationships with international senders and logistics companies VAT and customs issues in connection with cross-border deliveries/export control checking and defending warning notices and lawsuits from German consumer protection associations and competitors, crossborder enforcement of interests in court proceedings central coordination with and referral to specialised foreign law firms, including required language management 21

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23 YOUR CONTACT PARTNER Dr. Daniel Rücker, LL.M. Rechtsanwalt Dr. Daniel Rücker is head of the interdisciplinary Noerr E-Commerce Team. He also coordinates the law firm s internal data protection expert group whose know-how can be made available to international companies in issues such as data collection and exploitation as well as crossborder transfers. As well as numerous publications, he lectures on these issues regularly at seminars and conferences and in his teaching assignment at the University of Passau (Germany). Munich T daniel.ruecker@noerr.com Expert for data protection IT contracts 23

24 OUR TEAM le to payment t procedures Dr. Benjamin Bajon, LL.M. Rechtsanwalt Berlin T benjamin.bajon@noerr.com Expert for data protection consumer protection Dr. Florian Bentele Rechtsanwalt Frankfurt am Main T florian.bentele@noerr.com Expert for supervisory law applicable to payment services and e-money e-payment and payment procedures 24 24

25 Dr. Tom Billing Rechtsanwalt Dr. Tom Billing Rechtsanwalt Berlin T Berlin tom.billing@noerr.com T tom.billing@noerr.com Expert for Expert for distribution law franchising distribution law franchising Prof. Dr. Peter Bräutigam Rechtsanwalt, Prof. Dr. Peter Certified Bräutigam specialist for IT law Rechtsanwalt, Certified specialist for IT law Munich T Munich peter.braeutigam@noerr.com T peter.braeutigam@noerr.com Expert for Expert for IT contracts outsourcing IT contracts and cloud computing social outsourcing media and cloud data protection computing social media and data protection 25 25

26 Dr. Torsten Fett Rechtsanwalt Frankfurt am Main T torsten.fett@noerr.com Expert for supervisory law applicable to payment services and e-money e-payment and payment procedures Dr. Tobias Frevert Rechtsanwalt Berlin T tobias.frevert@noerr.com Expert for mobile commerce telecommunications data protection 26 26

27 Dr. Sylvia Kaufhold, Maître en droit Rechtsanwältin Dr. Sylvia Kaufhold, Maître en droit Rechtsanwältin Dresden T Dresden sylvia.kaufhold@noerr.com T sylvia.kaufhold@noerr.com Expert for Expert for general business terms and conditions general business terms and conditions information obligations information customer protection obligations customer international protection private law international private law Evelyn Schulz Rechtsanwältin Evelyn Schulz Rechtsanwältin Dresden T Dresden evelyn.schulz@noerr.com T evelyn.schulz@noerr.com Expert for Expert for food law food law product presentation product labelling presentation law labelling competition law law competition law 27 27

28 Bernhard von Sonnleithner, LL.M. Rechtsanwalt Munich T bernhard.vonsonnleithner@noerr.com Expert for data protection social media Otto Stolberg-Stolberg Rechtsanwalt Dresden T otto.stolberg@noerr.com Expert for distribution law general civil law 28 28

29 NOERR Impressive Range of Expertise * Noerr is a first-class European law firm with more than 470 professionals, five offices in Germany, seven in Central- and Eastern Europe, an office in Alicante (Spain), an office in London and a representative office in New York. Our core business is excellent legal and tax advice which develops sustainable solutions and creates added business value in selected areas of commercial law innovatively and pro-actively in a solution-oriented way and with solid academic foundations with integrated skills and abilities and focus on sectors with a partner-driven and clientoriented approach with strategic competence Together with our cooperation partners, Noerr Consulting AG and Noerr Wirtschaftsprüfungsund Steuerberatungsgesellschaften, we develop sustainable legal, tax, finance and management solutions. Focused: Leading experts in many legal areas and branches of industry deliver solutionoriented advice to the highest professional standards. The spectrum of our industry-focussed teams ranges from automotive, environment and renewable energies, media and IT through healthcare issues to financial services. International: Our own offices in eleven jurisdictions and reliable best friends among other law firms, especially in London and New York, as well as our exclusive German membership in Lex Mundi, the largest global network of independent law firms, ensure legal services at the highest international level worldwide. Central and Eastern Europe: We were among the first Western firms to establish offices in Central and Eastern Europe. We have continuously extended this advantage by establishing networks in industry, politics and administration. With more than 150 professionals in Central and Eastern Europe, we are among the leading law firms in the region. For more information visit * JUVE Handbook Commercial Law Firms, 2009/

30 AWARDS Client Choice Award 2012: Best German Law Firm s honoured Noerr In 2012, the British online service International Law Office (ILO) has honoured Noerr n law firm. Both last for the third time with the Client Choice Award as best German law firm. Both last rnational survey. year and in 2007, the law firm was the national winner in the international survey. wards on the basis Law firms and lawyers in 64 countries receive the Client Choice Awards on the basis 05, the ILO awards of a survey of more than 2,000 in-house lawyers. Established in 2005, the ILO awards are worldwide among those most respected for law firms. Firm of the Year his award, the 10, honours Noerr s. The award is ely responsive and Noerr has, for the second time, been named as Client Service Law Firm of the Year for Germany by Chambers Europe Awards for Excellence With this award, the British legal publisher Chambers and Partners, as it already did in 2010, honours Noerr s outstanding client work, professionality and excellent client service. The award is based on excellent client feed-back such as Noerr... is well structured, extremely responsive and organised. The different departments work closely together. oerr with the titles, Noerr had been Law Firm of the nt law. The editors gained during ex- At the JUVE Awards 2010 the German legal publisher JUVE awarded Noerr with the titles Law Firm of the Year for M&A and for Dispute Resolution. In 2009, Noerr had been honoured as Law firm of the year for its antitrust law practice and as Law Firm of the Year for eastern Germany, in 2008 as Law Firm of the Year for procurement law. The editors of the German leading legal publisher JUVE base their decision on information gained during extensive research and inquiries with market participants International succession the firm re than 120 chief lectric, Nestlé, Philustrial and develop- Noerr was honoured as the Best German Law Firm at the 2011 International Legal Alliance Summit & Awards (ILASA): for the third time in succession the firm was selected as winner of the Gold Award. In 2011, the ILASA jury included more than 120 chief in-house lawyers of world leaders such as Alcatel-Lucent, Coca-Cola, General Electric, Nestlé, Philips, SAP and Total. They assessed more than 200 law firms in all important industrial and developing nations

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