© Denis Junker – Fotolia.com

Print advertising must contain revocation instructions

Print advertising must also contain a withdrawal policy and the model withdrawal form, according to the Regional Court of Wuppertal. The Düsseldorf Higher Regional Court will now clarify whether the decision will stand.

In proceedings before the Regional Court of Wuppertal, the question was dealt with as to whether a revocation instruction and the model revocation form must also be provided in less extensive print advertising with the option of ordering.

Wettbewerbszentrale vs. mail order company

In the test case, the Wettbewerbszentrale took action against a mail order company that advertised its goods in a print brochure, among other things. The brochure contained a detachable card with which consumers could place a binding order for the advertised items. The card stated that the buyer had a guaranteed right of return for 14 days and that the statutory right of withdrawal also applied. The brochure did not contain any further information on the right of withdrawal.

Advertising brochure as a means of distance communication

After the current defendant did not issue a sufficient cease-and-desist declaration in response to the warning from the Wettbewerbszentrale, the current plaintiff took legal action against it. Among other things, it criticized the defendant’s failure to inform the consumer about

the conditions, time limits and procedure for exercising the right of withdrawal, in particular the name, address and telephone number of the person to whom the withdrawal is to be declared” and “on the model withdrawal form.

The defendant defended itself against this by arguing that its advertising brochure was a means of distance communication that only offered limited scope for the information to be provided to the consumer. According to Art. 246a § 3 EGBGB, its duty to inform is therefore limited and does not include the elements listed in the claim. In cases where such a means of distance communication is actually involved, only the following information must be provided:

  1. the essential characteristics of the goods or services,
  2. the identity of the entrepreneur,
  3. the total price or, in cases where the price cannot reasonably be calculated in advance due to the nature of the goods or services, the method of calculating the price,
  4. the existence of a right of withdrawal, if applicable, and
  5. if applicable, the contract term and the conditions for terminating a continuing obligation.

In fact, the question of whether small-format print advertising with little space for the presentation of information in accordance with. Art. 246a EGBGB as

means of distance communication that provides only limited space for the information to be provided to the consumer.

has not been decided by case law.

Revocation declaration and sample form required in print advertising

However, the court did not agree with the defendant’s argumentation and ruled that the mere reference to the existence of a right of withdrawal was not sufficient in such a case (judgment of 21.07.2015, Ref. 11 O 40/15). The court did not see a case of Art. 246a § 3 EGBGB:

This is because such means of distance communication only include media that are limited in time or space for technical reasons and from the outset, such as some mobile devices, text messages or television advertising. According to the meaning and purpose of the provision, print media should not be privileged. The limited space of a flyer is not intrinsic to the means of communication and therefore must be accepted if the medium is not to be de facto banned as an advertising medium. Rather, the limited space is based on a voluntary design of the medium by the advertiser.

Ultimately, it is up to the respective entrepreneur to decide how much space to give to an instruction or the required information obligations (see also Schirmbacher/Engelbrecht, ITRB 2014, 89 (90)). Thus, the present space limitation is not technically conditional, but rather freely chosen by the entrepreneur when deciding on the scope of the prospectus:

If one were to equate this voluntarily induced lack of space with that of SMS, which only allows 160 characters, or with that of various displays, the entrepreneur would be able to evade the basic information obligations by choosing the size of the print insert, e.g. only 6 instead of 8 or 10 pages. This violates the basic idea of § 312 k I 2 BGB, according to which the provision of the subtitle and thus also the information obligations at issue here also apply if there is a circumvention by other design (as here: Palandt, 74th edition 246 a § 3 EGBGB, para. 1).

The decision is not yet legally binding. The appeal proceedings are currently pending before the Higher Regional Court of Düsseldorf under case number 15 U 54/15. It remains to be seen whether the Court of Appeal will agree with the Regional Court’s assessment.

Click here for further explanations on the changes to the right of withdrawal since 2014.

(Image: © Denis Junker – Fotolia.com)

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