Legal pitfalls in e-commerce: How to avoid warning letters
A small mistake in the legal notice, and a warning letter lands in your inbox. These legal pitfalls can get expensive fast — but don’t worry, we’ll show you how to avoid them! In this episode, you’ll learn which reasons for warning letters are particularly common in online retail and how you can effectively protect yourself from them.
Helpful tips come from Dr. Carsten Föhlisch, VP Legal Services and authorized officer of Trusted Shops SE, as well as our colleague John Probert. They explain how you can stay on the safe side legally and how the free legal advice in cooperation with Trusted Shops can help you do that.
Whether you’re just starting your online shop or have been at it for a long time — this episode brings more legal certainty to your e-commerce business. So definitely listen in!
**Important links**
- Free eBay legal advice (https://www.ebay.de/verkaeuferportal/verkaeuferstandards/trusted-shops/rechtsberatungen?targetgroup=B2C)
- eBay shop packages (https://www.ebay.de/help/selling/fees-credits-invoices/ebay-shoppakete-und-ihre-vorteile?id=5147)
- eBay for Business on Facebook (https://www.facebook.com/ebayforbusiness.de/)
- eBay for Business on Instagram (https://www.instagram.com/ebayforbusiness_deutschland/)
- More info about the eBay podcast “Alles top. Gerne wieder!” and our podcast hosts (https://www.ebay.de/verkaeuferportal/news/podcast)
** Chapter markers **
- 00:00:00 to 00:03:07: Intro
- 00:03:07 to 00:04:56: Why are warning letters so common in Germany?
- 00:04:56 to 00:15:47: What are the most common reasons for warning letters on eBay and how can I protect myself?
- 00:15:47 to 00:20:03: How does eBay and Trusted Shops’ free legal advice support me?
- 00:20:03 to 00:25:27: What do I do if I still receive a warning letter?
- 00:25:27 to 00:28:59: Outro
Vincent: A wrong cancellation policy, a missing base price, or an error in the legal notice, and suddenly a warning letter shows up. And that can get pretty expensive very quickly. So that you’re legally on the safe side, in this episode we’re talking about which warning letters sellers are especially often confronted with, how you protect yourself from them, or what you should do then, and how we support you together with Trusted Shops.
Carsten: So we’ve now evaluated this for this year. That’s around 220 warning letters that we’ve already defended. And as I just said, generally number one is incorrect price information, number two is product law, and number three is copyright infringement. And on Ebay it’s a bit different. There, copyright infringements are number one.
Vincent: Welcome to "Alles top. Gerne wieder!", the Ebay podcast about retail and e-commerce. I’m Vincent Rek, and today we’re looking at a topic that probably makes every seller cringe: warning letters. I’ve brought two experts to my side for this: Dr. Carsten Fölisch has been advising online sellers for more than 20 years as Vice President Legal Services and authorized officer at Trusted Shops, and he is also the founder of the law firm Föhlisch Rechtsanwälte, which repeatedly defends against warning letters. In addition, he teaches IT law in Münster, has been active several times as an expert in the Bundestag, and writes specialist works on the right of withdrawal and consumer protection. Great to have you back today, Carsten.
Carsten: Yes, thank you very much, Vincent. I’m really pleased.
Vincent: Also with us today is my colleague John Probert. John supports sellers and partners in successfully getting started on Ebay, growing, and selling successfully in the long term. To do this, he leads programs like Ebay Durchstarter, for example. His goal is to provide sellers with exactly the tools and offers that really help them in everyday selling. Welcome, John.
Carsten: Thank you very much. I’m really pleased.
Vincent: Yes, we always like to start with a question that doesn’t actually concern our real topic today, but is a bit off topic. Carsten, what is normally on your desk? What’s there that you simply can’t do without?
Carsten: Well, I actually have a very tidy desk, but what I always have there is a photo of my family. I’m married for the second time and have three children from my first marriage and one more besides. And when I see those four and my wife, I immediately get in a good mood. And I sometimes need that when working.
Vincent: Yes, sounds good. Four children is of course great.
Carsten: Yes, it’s never boring.
Vincent: What about you, John?
Carsten: For me, it’s more that as little as possible should be lying on my desk. The keyboard, the mouse, the laptop, and nothing else except space should be there.
Vincent: Yes, I think I know your desk quite well from the calls. You have something from Ebay on your desk, don’t you?
John: I have various Ebay merch items that we might take to our events and hand out. I also currently have a stress ball on my desk.
Vincent: Yes, I know that well. Okay, then let’s start with today’s topic: warning letters. Carsten, you’ve been at this for many years and have probably seen the most warning letters of the three of us and also defended the most warning letters. Can you explain to us at the start why warning letters are such a big topic in Germany in the first place?
Carsten: Well, quite simply because Germany is the only country where this exists in this form. In most other European countries there are some kind of authorities or perhaps associations, consumer associations. Only in Germany can competitors also issue warning letters and demand money for them. At least their own legal fees, sometimes more. And because the legal situation in online retail is still relatively complicated, with more and more new things being added, it’s simply a very attractive business model. Profiting from others’ mistakes — that’s the reason.
Vincent: And has anything changed in recent years?
Carsten: Thank goodness, and this is where two hearts beat in my chest. On the one hand, I naturally earn money defending warning letters; on the other hand, we’ve always thought it was too much and have lobbied against it. For eight years, in fact, until the end of 2021, when the Act to Strengthen Fair Competition, also known colloquially as the anti-warning-letter law, came into force. And there were important changes, among them that warning-letter associations must be entered in a list at the Federal Office of Justice, and further that competitors can no longer claim legal fees for formal violations in e-commerce. And that has taken a lot of wind out of the warning-letter issuers’ sails in recent years.
Vincent: What would you say if you look back on this year: what are the hot topics right now?
Carsten: Very aktuell there is new case law from the ECJ on price comparison advertising, i.e. crossed-out prices, that you can no longer advertise with the RRP in percentage terms. We have a few classics, and those are also about prices, such as missing base price information or incorrect base price information. And because these simple things, like an incorrect cancellation policy, US platforms — we’ll probably come back to that in a moment — can no longer be warned with a fine, we’ve seen a shift toward product labeling, i.e. energy labeling, biocide labeling, so all these special product topics. Yes, those are the trend topics. And yes, there are a few evergreens, but we’ll probably get to those in a moment.
Vincent: Yes, yes, the evergreens — we can keep going with those. What are the big classics? I mean, you already mentioned the cancellation policy.
Carsten: Yes, the cancellation policy is very interesting. Before 2021, so before this anti-warning-letter law, it was actually by far number one and now plays almost no role at all, because the competitor at least can no longer demand legal fees there. So are you asking about the ranking of the most warning letters? I have... I have a little cheat sheet with me, if I may take a quick look, because there are actually differences between general and Ebay. We’ve now evaluated this for this year. That’s around 220 warning letters that we’ve already defended. And as I just said, generally number one is incorrect price information, number two is product law, and number three is copyright infringement. And on Ebay it’s a bit different. There, copyright infringements are number one. For example, that’s the stolen image from a competitor, just like that. When it comes to images and photos, you always have to be careful with copyright. Product law is number two and price information number three. So the same topics, just in a slightly different order.
Vincent: What works better on Ebay? So speaking from experience?
Carsten: In the general area we also have many data protection violations now, which are actually being warned against. So not only attacked by authorities, but also by competitors. Analytics, cookie banners are keywords there. But that really only applies in your own shop. Not on Ebay at all, because Ebay hosts that as a platform. And you can’t really do your own analytics or other things that could be problematic. That’s why it doesn’t play any role on Ebay. And we also don’t have any spam newsletter warning letters or anything like that on Ebay. That’s otherwise also a relatively big topic, especially one of those evergreens.
Vincent: John, does that match your experience from conversations with sellers? What Carsten just said about the things that come up frequently on Ebay?
John: Yes, absolutely. We hear this especially from our sellers whom we meet at our events and on site. It’s mainly about the issue of uncertainty. And they’re unsure about what the risks are and where they lie. What do they even need to do? Where do they need to start? And that’s where we try to build the bridge between what is uncertain for our sellers and giving them the security that they’re doing the right thing. Because in the end, it can cause a lot of fear. Even for our sellers, if they don’t know, okay, what do I need to pay attention to now? What do I need to do here? Together with partners like Trusted Shops, we then try to find solutions so that everyone can have a lot more fun.
Vincent: Can you sketch out what our offer looks like there? So what do we offer?
John: Yes, I think the essential thing is what we’ve been doing for several years now with Trusted Shops. And that’s an offer for all sellers who have an active shop subscription. And they can access the Trusted Shops text tool, i.e. legal texts. That means all the legal texts you need in your online shop; cancellation policy, terms and conditions, legal notice — these are created there, and they’re created based on very detailed prompts. Those are exactly the questions you have to answer for the business. In the end, you then know that it’s really secure. We then say these texts are warning-letter-safe; that’s a guarantee from Trusted Shops, and you can correct me if I’m wrong. But as far as I know, nothing has successfully been warned against so far.
Carsten: That’s our job. It would be bad if our texts were subject to warning letters. We’ve actually been doing this since 2009, for Ebay we started a little later, but since then there have actually been no warning letters against these texts, because that’s what they’re there for. That’s what we get paid for and our services, that’s clear. That goes without saying.
Vincent: Yes, we’ve now talked about warning letters. What exactly is there in terms of warning letters, of offers?
John: So if it does come to the point that a warning letter drops into the mailbox, then of course we also have an offer. And that is that you can directly book an initial consultation with a lawyer from the law firm Föhlisch. We offer this to every seller who has a shop subscription with us, and I would definitely recommend it should it come to that. But of course we hope it doesn’t come to that, but this protection is then in place.
Vincent: What does such an initial consultation look like, Carsten? So a warning letter has come in, let’s say it’s about product law: what happens next?
Carsten: Well, then we take a look. Of course we need to see it specifically — the warning letter itself: who issued it? Is that person even entitled to do so, or is it an association that isn’t even entered on this list? Then, did the violation really happen? Maybe it’s actually my own photo, or a stolen one? And in the end it’s always about the costs too. Quite often we can also negotiate the costs way down. Especially in cases of copyright infringement. I also remember one case. It was a father and son who sold on Ebay and were simply very inexperienced, so they had two copyright infringements. The other side wanted several thousand euros in damages and issued two warning letters. We then combined it into one case, and in the end those people saved 8,000 euros. And that’s quite a lot, of course. And yes, those are the typical topics we then advise on in warning-letter cases.
Vincent: Let’s talk a bit more specifically about product law: you said, I think for Ebay it was topic number two; it comes up very often. What are the classic mistakes there? So what are you observing? Is it that sellers simply don’t know anything about it, or is it incorrect information of some kind?
Carsten: It’s often something that’s forgotten, or you could say it’s often outdated. Many people think: warning letters, that’s about legal texts, incorrect terms and conditions clauses, or something is missing from the legal notice, or the cancellation policy is old. That used to be the case, yes, but as I said, the topics have shifted, and especially with electronic products you’ve got a huge pile of energy labels, or since December last year there’s the Radio Equipment Act, where I’m telling you, these are radio devices. Every cellphone, every cellphone is a radio device, and then there’s a new regulation that you have to sell the whole thing without a charger. And if you sell it with a charger, then you need a pictogram. Exactly which device it is has to be stated on it. And you just have to keep up with it, and many people let it slip through their fingers and then leave out one of those labels. And that’s already a competition violation. And then they can be warned. And that’s the classic product law issue. Or you don’t use the scale from A to G for energy labels, which also belongs to it. Then you only put the energy efficiency class. And there too, EU regulations or new delegated regulations and framework regulations are constantly changing. I have an employee who really does nothing else but this product law, and it’s the same in other law firms. And as a normal seller, you simply can’t always stay up to date. You need someone to take care of it. And that’s what we’re here for.
Vincent: So you’d say it’s often simply an information deficit.
Carsten: Yes, exactly. Information, or outdated information because you don’t always catch everything that changes. Things are constantly changing, after all. And then you still have old labels lying around and don’t even know there’s something new. And that’s exactly what the warning-letter issuers exploit too. They’re looking for the needle in the haystack.
Vincent: John, how do we help with issues like that? We continuously inform our sellers about new regulations. But how... can you sketch that out a bit?
John: And if we’re talking specifically about the partnership with Trusted Shops. We don’t just offer access to the text generator; Trusted Shops also regularly runs online training sessions and webinars that people can take part in, where these regulations and topics are discussed in detail. We make sure our sellers can take part. We also provide various white papers online to our sellers on these topics. The information is there. In addition, we always try to bring Trusted Shops representatives along wherever we go, at our various events. This year we were on the road in four cities across Germany. We also had our eBay OPEN in Berlin for a month, and of course we always had Trusted Shops representatives with us there to address these topics directly.
Vincent: And of course also always at our roadshows.
John: Exactly, exactly, at our roadshows, everywhere we are really.
Vincent: You’ve already talked about various topics: we have the legal advice, we have the shop subscription benefits. Can you summarize that again a bit and say: if I’m starting as a seller on Ebay, where will I be supported?
Carsten: Our sellers should have as much time as possible for the essentials in the business and not have to spend much time wrestling with or fighting through the detailed stuff, where we can support them. That’s why we set up partnerships like the one with Trusted Shops. We want these annoying topics to be reduced to a minimum, and that also includes understanding the legal topics. We also know that the whole problem usually lies in understanding the details. It’s more a matter of understanding than of will. And we just want to make things easy for our sellers.
Vincent: Before we learn more about warning letters in a moment, a small tip from me: definitely check out the Ebay Community. There Ebay sellers regularly exchange ideas, share experiences and tips, especially about warning letters and how to protect themselves from legal pitfalls otherwise. You’ve already mentioned various things. You talked about the legal advice and the Ebay shop subscription. If I’m starting as a seller on Ebay now: can you walk me through that a bit? Where will I be supported? Where does Ebay help me in cooperation with Trusted Shops?
Carsten: Yes, definitely. Right from the start we support our sellers with this Trusted Shops offer too, because then all sellers who take part in our Durchstarter program, for example, are entitled to these benefits. That means right when the shop is set up for the first time, the issue is addressed together: implementing the legal texts, going through these Trusted Shops questionnaires and making sure the correct information is provided for the legal texts. We make sure that our sellers also make use of the free update service. That’s also from Trusted Shops: you’re notified as soon as changes occur or would need to occur in the already created legal texts. Cancellation policy, legal notice, terms and conditions, privacy policy, etc. Because really only through this update service are you truly secure. You may have drafted the texts once, but six months later perhaps there’s a small legal adjustment, and we or Trusted Shops then notify you that it needs to be updated. That is of course the biggest advantage of the offer with the legal texts. We also see many people or many sellers who are very tempted to generate their legal texts themselves, perhaps using AI tools, or to use standard templates. But those are only as secure as the prompts they enter there. And of course what’s missing is the expertise about exactly which questions would need to be asked.
Vincent: And they aren’t updated.
John: And they aren’t updated. And the AI providers certainly won’t be liable if it still needs to be warned against.
Vincent: No, they definitely won’t. That’s where your guarantee comes into play quite well.
Carsten: Yes, what do you mean by guarantee. It’s a given — that’s our job. They’re not really allowed to advertise that too much; that’s our service promise. And that’s part of it. But a very important point: they have to be tailored to your processes, and also to your workflows. And if I now take legal texts from an online shop for Ebay, then that simply doesn’t fit, because for example the contract is concluded in a very different way. You may have different payment methods. All of that is mandatory information. That in turn is linked to the contract conclusion clause, which means it has to be essentially custom-made. And that only works with a questionnaire, not with standard templates. And of course they’re designed so that they stay current for as long as possible, so you don’t have to keep updating things all the time. But a small example: in 2026 we’ll have another change in the law, and the so-called withdrawal button will be introduced, right? There’s already the order button, the cancellation button, and now also the third one, the withdrawal button. And then you also have to inform people about this button in the cancellation policy, for example. Of course that’s not in there yet. And that’s an example: the law changes, then the texts change again, and you’ll be informed by us that you need to make an update.
Vincent: Yes, and I think an important point here too, because you’re talking about the withdrawal button just now, is that we’re also closely coordinated. That means there are legal texts for Ebay for me, and not legal texts for online shop X.
Carsten: Yes, exactly. And we, we discuss, but we also know each other already for years or decades, I can say. So really, I’ve been doing the job for 25 years now, and many at Ebay have also been there that long, and since then we’ve also been in conversation and coordinating on the current developments and how to interpret certain things and where risks can be taken and where not, and we coordinate closely on that and then implement it as well. So also Ebay’s view. And that’s also very important, that we’ve built up a relationship of trust over the years.
Vincent: If I’ve now received a warning letter, let’s take product law, since we’ve talked a lot about product law today: what do I do then? What are the next steps?
Carsten: Yes, get a professional. Don’t do it on your own — I can only keep saying that. Not because I myself am the professional, but because a lot can go wrong there. So often it’s the case that you really did something wrong. But that still doesn’t mean you have to sign what the warning issuer puts in front of you, because that’s also formulated far too broadly. You pay too much money, or there are violations that you simply can’t fully get under control technically. Then sometimes it’s even better to go to court and be sentenced. Because if you do it wrong again, then that’s simply much cheaper than if you signed something. It’s the so-called contractual penalty trap. And you can’t know all that. So go to a lawyer, and not one who does traffic accidents and only does that, but someone who only does this kind of thing. And that’s us, for example.
Vincent: And when you say sign, can you briefly explain what exactly you mean by that? So where should I not put my signature?
Carsten: Usually, a warning letter includes a so-called cease-and-desist and undertaking declaration, which is subject to a penalty. And that’s one way to settle the whole thing out of court, i.e. to reach an agreement, and then you sign: okay, I did this and that wrong. I will never do it again. And if I do it again, then I’ll pay 3,000 euros, 5,000 euros, or an appropriate penalty. And that is often the real business model for many warning-letter issuers, because they know exactly that, for example, the base price violation will probably happen again, and then that penalty becomes due. And not just once, but every time it’s more money. And that is dangerous. It has already ruined one person or another. And as I said, that’s why there are alternatives, such as getting injunctions overturned with a so-called closing declaration, because then there are fines for the state treasury, and that is unattractive for warning-letter issuers. But these are all strategies you should discuss with a lawyer, and not sign anything on your own just because you think, yes, that’s true, I really did do it wrong.
Vincent: Okay, to summarize everything again: you shouldn’t sign. If possible, you should take advantage of the free legal advice at Ebay and definitely get advice before taking any further steps. Yes, in the consultation we can show you your options, and then you can decide what you want to do with us or with another lawyer who knows the subject. But in any case, you’ll have many more options for action and know exactly what happens if you just sign it.
Vincent: And it’s also the case now: we’ve just launched the legal advice services, so you’re also in close exchange there. That means what you hear is also communicated.
Carsten: Yes, of course we have attorney-client privilege. But it’s exciting what topics come up there. And then we naturally talk in general about what the topics are and what interests the sellers and where we can also do trainings again. And yes, that flows in.
Vincent: So if we now go into the legal area, what are your tips? I’m now starting to sell on Ebay. I’m opening a shop right away. I have all the Trusted Shops services: what’s the best way for me to behave?
Carsten: Use the whole thing and there’s no use in anything else. As you said, these are simply annoying topics. This really isn’t such an exciting topic for entrepreneurs, dealing with legal regulations. Especially because there are far too many of them and they’re not always particularly clear or well made by the EU. But that’s what we’re here for. So just use the partnership. You have it included in the price. And if you just have those legal texts, that’s already half the battle. So no one should have to be warned because of incorrect legal texts anymore. That used to happen, but that really isn’t an issue anymore now.
Vincent: And the numbers speak for that too.
Carsten: Otherwise there’s no use in anything. You just have to keep up to date all the time. You should also come to the eBay Opens and listen to a talk. And if there are questions, then ask us and we can help. But you also have to do it. You can’t just set it up once and then not deal with it for three years. That probably won’t be enough. #00:24:23-5# Vincent: Yes, and if it does blow up at some point, then legal advice.
Carsten: Yes, we’re doing legal advice now. Of course we also have other offers, which aren’t included yet. But of course we can represent you, either in court or out of court. And we get pretty good results, and the connection is there. So there too, we can help further.
Vincent: Do you have anything to add from the eBay perspective?
John: Simply everything Carsten said, I would definitely underscore. Stay up to date, and also just stay in exchange with us. We also do our best to bring all this information to our sellers and continuously expand our offer. So what help options we have and can offer. And the legal offer is only one part of that. In general, we also want to offer an overall package that helps sellers grow as much as possible and expand their business and make everything easier by removing fear and uncertainty through this support.
Vincent: Of course we’ll also put the links to the legal advice and the shop subscriptions in the show notes. Finally, I’d like to ask you one more question, which you can answer either from your own perspective or, John, perhaps for you more from the seller perspective: what have you learned recently that really moved you or sellers forward?
John: That’s a very nice question. One example that definitely comes to mind is actually a bit older, but from one of our roadshow events two years ago, I think even in Berlin, I spoke with a seller in Berlin. She sold fashion a lot, i.e. used clothing, and at our event she got talking with another seller who was just starting out with selling pre-loved fashion. And he knew basically nothing — he was really completely new. And the two of them got into a conversation and she gave him tip after tip, recommendation after recommendation. They then arranged to do a joint photoshoot of their products. And that’s roughly what I wanted to say: exchange in the community is very important. There is so much expertise about online retail, about Ebay as a platform, about our customers. Just talking to each other, learning from one another, going to such events and then taking something from the others, from the whole community, and also contributing something. That makes the platform much better overall.
Vincent: I think I was even there at the roadshow. Two years ago, you say?
John: Yes.
Vincent: Sounds very, very familiar. That’s a nice anecdote. How about you, Carsten?
Carsten: Yes, like many people right now I’m totally excited about the topic of AI. I’m currently renovating a bit at home. I’ve changed my living room to different colors and other window colors. It’s simply amazing what you can do with it. But — and here comes the “but” — with legal topics, AI really hallucinates like crazy, and there are already the first cases from the US where the courts say, lawyer, rewrite this for me, because the judgments you’re citing don’t even exist. And I’ve also experienced more than once that our sellers who are in warning-letter defense then asked ChatGPT themselves and said, yes, but it’s like this and that, and we said, no, unfortunately not, that’s not how it is. And that means I really wouldn’t rely on it yet. And who knows whether one can ever rely on it completely.
Vincent: I’ve noticed that too. I think you can of course say, better AI than no information at all. But best of all, of course, get information through our cooperation.
John: AI is a very powerful tool, but just a tool. And that’s not necessarily the solution.
Vincent: Yes, and it’s difficult to verify when you don’t have specialist knowledge.
John: It always sounds so perfect, what comes out. You don’t know exactly what’s invented.
Vincent: Yes. Absolutely. Thank you very much for joining us, Carsten and John. Warning letters are really annoying, but with the offers and the information from today’s episode, you should be well armed here. We mentioned a lot today. We talked about the free legal advice. We talked about the legal texts, generally about our cooperation with Trusted Shops. We’ll put all the information about that in the show notes. There it will also be explained again how you get the shop subscription and how you can then take advantage of all the services. Thank you for listening, and see you next time on "Alles Top. Gerne wieder!"
Carsten: So we’ve now evaluated this for this year. That’s around 220 warning letters that we’ve already defended. And as I just said, generally number one is incorrect price information, number two is product law, and number three is copyright infringement. And on Ebay it’s a bit different. There, copyright infringements are number one.
Vincent: Welcome to "Alles top. Gerne wieder!", the Ebay podcast about retail and e-commerce. I’m Vincent Rek, and today we’re looking at a topic that probably makes every seller cringe: warning letters. I’ve brought two experts to my side for this: Dr. Carsten Fölisch has been advising online sellers for more than 20 years as Vice President Legal Services and authorized officer at Trusted Shops, and he is also the founder of the law firm Föhlisch Rechtsanwälte, which repeatedly defends against warning letters. In addition, he teaches IT law in Münster, has been active several times as an expert in the Bundestag, and writes specialist works on the right of withdrawal and consumer protection. Great to have you back today, Carsten.
Carsten: Yes, thank you very much, Vincent. I’m really pleased.
Vincent: Also with us today is my colleague John Probert. John supports sellers and partners in successfully getting started on Ebay, growing, and selling successfully in the long term. To do this, he leads programs like Ebay Durchstarter, for example. His goal is to provide sellers with exactly the tools and offers that really help them in everyday selling. Welcome, John.
Carsten: Thank you very much. I’m really pleased.
Vincent: Yes, we always like to start with a question that doesn’t actually concern our real topic today, but is a bit off topic. Carsten, what is normally on your desk? What’s there that you simply can’t do without?
Carsten: Well, I actually have a very tidy desk, but what I always have there is a photo of my family. I’m married for the second time and have three children from my first marriage and one more besides. And when I see those four and my wife, I immediately get in a good mood. And I sometimes need that when working.
Vincent: Yes, sounds good. Four children is of course great.
Carsten: Yes, it’s never boring.
Vincent: What about you, John?
Carsten: For me, it’s more that as little as possible should be lying on my desk. The keyboard, the mouse, the laptop, and nothing else except space should be there.
Vincent: Yes, I think I know your desk quite well from the calls. You have something from Ebay on your desk, don’t you?
John: I have various Ebay merch items that we might take to our events and hand out. I also currently have a stress ball on my desk.
Vincent: Yes, I know that well. Okay, then let’s start with today’s topic: warning letters. Carsten, you’ve been at this for many years and have probably seen the most warning letters of the three of us and also defended the most warning letters. Can you explain to us at the start why warning letters are such a big topic in Germany in the first place?
Carsten: Well, quite simply because Germany is the only country where this exists in this form. In most other European countries there are some kind of authorities or perhaps associations, consumer associations. Only in Germany can competitors also issue warning letters and demand money for them. At least their own legal fees, sometimes more. And because the legal situation in online retail is still relatively complicated, with more and more new things being added, it’s simply a very attractive business model. Profiting from others’ mistakes — that’s the reason.
Vincent: And has anything changed in recent years?
Carsten: Thank goodness, and this is where two hearts beat in my chest. On the one hand, I naturally earn money defending warning letters; on the other hand, we’ve always thought it was too much and have lobbied against it. For eight years, in fact, until the end of 2021, when the Act to Strengthen Fair Competition, also known colloquially as the anti-warning-letter law, came into force. And there were important changes, among them that warning-letter associations must be entered in a list at the Federal Office of Justice, and further that competitors can no longer claim legal fees for formal violations in e-commerce. And that has taken a lot of wind out of the warning-letter issuers’ sails in recent years.
Vincent: What would you say if you look back on this year: what are the hot topics right now?
Carsten: Very aktuell there is new case law from the ECJ on price comparison advertising, i.e. crossed-out prices, that you can no longer advertise with the RRP in percentage terms. We have a few classics, and those are also about prices, such as missing base price information or incorrect base price information. And because these simple things, like an incorrect cancellation policy, US platforms — we’ll probably come back to that in a moment — can no longer be warned with a fine, we’ve seen a shift toward product labeling, i.e. energy labeling, biocide labeling, so all these special product topics. Yes, those are the trend topics. And yes, there are a few evergreens, but we’ll probably get to those in a moment.
Vincent: Yes, yes, the evergreens — we can keep going with those. What are the big classics? I mean, you already mentioned the cancellation policy.
Carsten: Yes, the cancellation policy is very interesting. Before 2021, so before this anti-warning-letter law, it was actually by far number one and now plays almost no role at all, because the competitor at least can no longer demand legal fees there. So are you asking about the ranking of the most warning letters? I have... I have a little cheat sheet with me, if I may take a quick look, because there are actually differences between general and Ebay. We’ve now evaluated this for this year. That’s around 220 warning letters that we’ve already defended. And as I just said, generally number one is incorrect price information, number two is product law, and number three is copyright infringement. And on Ebay it’s a bit different. There, copyright infringements are number one. For example, that’s the stolen image from a competitor, just like that. When it comes to images and photos, you always have to be careful with copyright. Product law is number two and price information number three. So the same topics, just in a slightly different order.
Vincent: What works better on Ebay? So speaking from experience?
Carsten: In the general area we also have many data protection violations now, which are actually being warned against. So not only attacked by authorities, but also by competitors. Analytics, cookie banners are keywords there. But that really only applies in your own shop. Not on Ebay at all, because Ebay hosts that as a platform. And you can’t really do your own analytics or other things that could be problematic. That’s why it doesn’t play any role on Ebay. And we also don’t have any spam newsletter warning letters or anything like that on Ebay. That’s otherwise also a relatively big topic, especially one of those evergreens.
Vincent: John, does that match your experience from conversations with sellers? What Carsten just said about the things that come up frequently on Ebay?
John: Yes, absolutely. We hear this especially from our sellers whom we meet at our events and on site. It’s mainly about the issue of uncertainty. And they’re unsure about what the risks are and where they lie. What do they even need to do? Where do they need to start? And that’s where we try to build the bridge between what is uncertain for our sellers and giving them the security that they’re doing the right thing. Because in the end, it can cause a lot of fear. Even for our sellers, if they don’t know, okay, what do I need to pay attention to now? What do I need to do here? Together with partners like Trusted Shops, we then try to find solutions so that everyone can have a lot more fun.
Vincent: Can you sketch out what our offer looks like there? So what do we offer?
John: Yes, I think the essential thing is what we’ve been doing for several years now with Trusted Shops. And that’s an offer for all sellers who have an active shop subscription. And they can access the Trusted Shops text tool, i.e. legal texts. That means all the legal texts you need in your online shop; cancellation policy, terms and conditions, legal notice — these are created there, and they’re created based on very detailed prompts. Those are exactly the questions you have to answer for the business. In the end, you then know that it’s really secure. We then say these texts are warning-letter-safe; that’s a guarantee from Trusted Shops, and you can correct me if I’m wrong. But as far as I know, nothing has successfully been warned against so far.
Carsten: That’s our job. It would be bad if our texts were subject to warning letters. We’ve actually been doing this since 2009, for Ebay we started a little later, but since then there have actually been no warning letters against these texts, because that’s what they’re there for. That’s what we get paid for and our services, that’s clear. That goes without saying.
Vincent: Yes, we’ve now talked about warning letters. What exactly is there in terms of warning letters, of offers?
John: So if it does come to the point that a warning letter drops into the mailbox, then of course we also have an offer. And that is that you can directly book an initial consultation with a lawyer from the law firm Föhlisch. We offer this to every seller who has a shop subscription with us, and I would definitely recommend it should it come to that. But of course we hope it doesn’t come to that, but this protection is then in place.
Vincent: What does such an initial consultation look like, Carsten? So a warning letter has come in, let’s say it’s about product law: what happens next?
Carsten: Well, then we take a look. Of course we need to see it specifically — the warning letter itself: who issued it? Is that person even entitled to do so, or is it an association that isn’t even entered on this list? Then, did the violation really happen? Maybe it’s actually my own photo, or a stolen one? And in the end it’s always about the costs too. Quite often we can also negotiate the costs way down. Especially in cases of copyright infringement. I also remember one case. It was a father and son who sold on Ebay and were simply very inexperienced, so they had two copyright infringements. The other side wanted several thousand euros in damages and issued two warning letters. We then combined it into one case, and in the end those people saved 8,000 euros. And that’s quite a lot, of course. And yes, those are the typical topics we then advise on in warning-letter cases.
Vincent: Let’s talk a bit more specifically about product law: you said, I think for Ebay it was topic number two; it comes up very often. What are the classic mistakes there? So what are you observing? Is it that sellers simply don’t know anything about it, or is it incorrect information of some kind?
Carsten: It’s often something that’s forgotten, or you could say it’s often outdated. Many people think: warning letters, that’s about legal texts, incorrect terms and conditions clauses, or something is missing from the legal notice, or the cancellation policy is old. That used to be the case, yes, but as I said, the topics have shifted, and especially with electronic products you’ve got a huge pile of energy labels, or since December last year there’s the Radio Equipment Act, where I’m telling you, these are radio devices. Every cellphone, every cellphone is a radio device, and then there’s a new regulation that you have to sell the whole thing without a charger. And if you sell it with a charger, then you need a pictogram. Exactly which device it is has to be stated on it. And you just have to keep up with it, and many people let it slip through their fingers and then leave out one of those labels. And that’s already a competition violation. And then they can be warned. And that’s the classic product law issue. Or you don’t use the scale from A to G for energy labels, which also belongs to it. Then you only put the energy efficiency class. And there too, EU regulations or new delegated regulations and framework regulations are constantly changing. I have an employee who really does nothing else but this product law, and it’s the same in other law firms. And as a normal seller, you simply can’t always stay up to date. You need someone to take care of it. And that’s what we’re here for.
Vincent: So you’d say it’s often simply an information deficit.
Carsten: Yes, exactly. Information, or outdated information because you don’t always catch everything that changes. Things are constantly changing, after all. And then you still have old labels lying around and don’t even know there’s something new. And that’s exactly what the warning-letter issuers exploit too. They’re looking for the needle in the haystack.
Vincent: John, how do we help with issues like that? We continuously inform our sellers about new regulations. But how... can you sketch that out a bit?
John: And if we’re talking specifically about the partnership with Trusted Shops. We don’t just offer access to the text generator; Trusted Shops also regularly runs online training sessions and webinars that people can take part in, where these regulations and topics are discussed in detail. We make sure our sellers can take part. We also provide various white papers online to our sellers on these topics. The information is there. In addition, we always try to bring Trusted Shops representatives along wherever we go, at our various events. This year we were on the road in four cities across Germany. We also had our eBay OPEN in Berlin for a month, and of course we always had Trusted Shops representatives with us there to address these topics directly.
Vincent: And of course also always at our roadshows.
John: Exactly, exactly, at our roadshows, everywhere we are really.
Vincent: You’ve already talked about various topics: we have the legal advice, we have the shop subscription benefits. Can you summarize that again a bit and say: if I’m starting as a seller on Ebay, where will I be supported?
Carsten: Our sellers should have as much time as possible for the essentials in the business and not have to spend much time wrestling with or fighting through the detailed stuff, where we can support them. That’s why we set up partnerships like the one with Trusted Shops. We want these annoying topics to be reduced to a minimum, and that also includes understanding the legal topics. We also know that the whole problem usually lies in understanding the details. It’s more a matter of understanding than of will. And we just want to make things easy for our sellers.
Vincent: Before we learn more about warning letters in a moment, a small tip from me: definitely check out the Ebay Community. There Ebay sellers regularly exchange ideas, share experiences and tips, especially about warning letters and how to protect themselves from legal pitfalls otherwise. You’ve already mentioned various things. You talked about the legal advice and the Ebay shop subscription. If I’m starting as a seller on Ebay now: can you walk me through that a bit? Where will I be supported? Where does Ebay help me in cooperation with Trusted Shops?
Carsten: Yes, definitely. Right from the start we support our sellers with this Trusted Shops offer too, because then all sellers who take part in our Durchstarter program, for example, are entitled to these benefits. That means right when the shop is set up for the first time, the issue is addressed together: implementing the legal texts, going through these Trusted Shops questionnaires and making sure the correct information is provided for the legal texts. We make sure that our sellers also make use of the free update service. That’s also from Trusted Shops: you’re notified as soon as changes occur or would need to occur in the already created legal texts. Cancellation policy, legal notice, terms and conditions, privacy policy, etc. Because really only through this update service are you truly secure. You may have drafted the texts once, but six months later perhaps there’s a small legal adjustment, and we or Trusted Shops then notify you that it needs to be updated. That is of course the biggest advantage of the offer with the legal texts. We also see many people or many sellers who are very tempted to generate their legal texts themselves, perhaps using AI tools, or to use standard templates. But those are only as secure as the prompts they enter there. And of course what’s missing is the expertise about exactly which questions would need to be asked.
Vincent: And they aren’t updated.
John: And they aren’t updated. And the AI providers certainly won’t be liable if it still needs to be warned against.
Vincent: No, they definitely won’t. That’s where your guarantee comes into play quite well.
Carsten: Yes, what do you mean by guarantee. It’s a given — that’s our job. They’re not really allowed to advertise that too much; that’s our service promise. And that’s part of it. But a very important point: they have to be tailored to your processes, and also to your workflows. And if I now take legal texts from an online shop for Ebay, then that simply doesn’t fit, because for example the contract is concluded in a very different way. You may have different payment methods. All of that is mandatory information. That in turn is linked to the contract conclusion clause, which means it has to be essentially custom-made. And that only works with a questionnaire, not with standard templates. And of course they’re designed so that they stay current for as long as possible, so you don’t have to keep updating things all the time. But a small example: in 2026 we’ll have another change in the law, and the so-called withdrawal button will be introduced, right? There’s already the order button, the cancellation button, and now also the third one, the withdrawal button. And then you also have to inform people about this button in the cancellation policy, for example. Of course that’s not in there yet. And that’s an example: the law changes, then the texts change again, and you’ll be informed by us that you need to make an update.
Vincent: Yes, and I think an important point here too, because you’re talking about the withdrawal button just now, is that we’re also closely coordinated. That means there are legal texts for Ebay for me, and not legal texts for online shop X.
Carsten: Yes, exactly. And we, we discuss, but we also know each other already for years or decades, I can say. So really, I’ve been doing the job for 25 years now, and many at Ebay have also been there that long, and since then we’ve also been in conversation and coordinating on the current developments and how to interpret certain things and where risks can be taken and where not, and we coordinate closely on that and then implement it as well. So also Ebay’s view. And that’s also very important, that we’ve built up a relationship of trust over the years.
Vincent: If I’ve now received a warning letter, let’s take product law, since we’ve talked a lot about product law today: what do I do then? What are the next steps?
Carsten: Yes, get a professional. Don’t do it on your own — I can only keep saying that. Not because I myself am the professional, but because a lot can go wrong there. So often it’s the case that you really did something wrong. But that still doesn’t mean you have to sign what the warning issuer puts in front of you, because that’s also formulated far too broadly. You pay too much money, or there are violations that you simply can’t fully get under control technically. Then sometimes it’s even better to go to court and be sentenced. Because if you do it wrong again, then that’s simply much cheaper than if you signed something. It’s the so-called contractual penalty trap. And you can’t know all that. So go to a lawyer, and not one who does traffic accidents and only does that, but someone who only does this kind of thing. And that’s us, for example.
Vincent: And when you say sign, can you briefly explain what exactly you mean by that? So where should I not put my signature?
Carsten: Usually, a warning letter includes a so-called cease-and-desist and undertaking declaration, which is subject to a penalty. And that’s one way to settle the whole thing out of court, i.e. to reach an agreement, and then you sign: okay, I did this and that wrong. I will never do it again. And if I do it again, then I’ll pay 3,000 euros, 5,000 euros, or an appropriate penalty. And that is often the real business model for many warning-letter issuers, because they know exactly that, for example, the base price violation will probably happen again, and then that penalty becomes due. And not just once, but every time it’s more money. And that is dangerous. It has already ruined one person or another. And as I said, that’s why there are alternatives, such as getting injunctions overturned with a so-called closing declaration, because then there are fines for the state treasury, and that is unattractive for warning-letter issuers. But these are all strategies you should discuss with a lawyer, and not sign anything on your own just because you think, yes, that’s true, I really did do it wrong.
Vincent: Okay, to summarize everything again: you shouldn’t sign. If possible, you should take advantage of the free legal advice at Ebay and definitely get advice before taking any further steps. Yes, in the consultation we can show you your options, and then you can decide what you want to do with us or with another lawyer who knows the subject. But in any case, you’ll have many more options for action and know exactly what happens if you just sign it.
Vincent: And it’s also the case now: we’ve just launched the legal advice services, so you’re also in close exchange there. That means what you hear is also communicated.
Carsten: Yes, of course we have attorney-client privilege. But it’s exciting what topics come up there. And then we naturally talk in general about what the topics are and what interests the sellers and where we can also do trainings again. And yes, that flows in.
Vincent: So if we now go into the legal area, what are your tips? I’m now starting to sell on Ebay. I’m opening a shop right away. I have all the Trusted Shops services: what’s the best way for me to behave?
Carsten: Use the whole thing and there’s no use in anything else. As you said, these are simply annoying topics. This really isn’t such an exciting topic for entrepreneurs, dealing with legal regulations. Especially because there are far too many of them and they’re not always particularly clear or well made by the EU. But that’s what we’re here for. So just use the partnership. You have it included in the price. And if you just have those legal texts, that’s already half the battle. So no one should have to be warned because of incorrect legal texts anymore. That used to happen, but that really isn’t an issue anymore now.
Vincent: And the numbers speak for that too.
Carsten: Otherwise there’s no use in anything. You just have to keep up to date all the time. You should also come to the eBay Opens and listen to a talk. And if there are questions, then ask us and we can help. But you also have to do it. You can’t just set it up once and then not deal with it for three years. That probably won’t be enough. #00:24:23-5# Vincent: Yes, and if it does blow up at some point, then legal advice.
Carsten: Yes, we’re doing legal advice now. Of course we also have other offers, which aren’t included yet. But of course we can represent you, either in court or out of court. And we get pretty good results, and the connection is there. So there too, we can help further.
Vincent: Do you have anything to add from the eBay perspective?
John: Simply everything Carsten said, I would definitely underscore. Stay up to date, and also just stay in exchange with us. We also do our best to bring all this information to our sellers and continuously expand our offer. So what help options we have and can offer. And the legal offer is only one part of that. In general, we also want to offer an overall package that helps sellers grow as much as possible and expand their business and make everything easier by removing fear and uncertainty through this support.
Vincent: Of course we’ll also put the links to the legal advice and the shop subscriptions in the show notes. Finally, I’d like to ask you one more question, which you can answer either from your own perspective or, John, perhaps for you more from the seller perspective: what have you learned recently that really moved you or sellers forward?
John: That’s a very nice question. One example that definitely comes to mind is actually a bit older, but from one of our roadshow events two years ago, I think even in Berlin, I spoke with a seller in Berlin. She sold fashion a lot, i.e. used clothing, and at our event she got talking with another seller who was just starting out with selling pre-loved fashion. And he knew basically nothing — he was really completely new. And the two of them got into a conversation and she gave him tip after tip, recommendation after recommendation. They then arranged to do a joint photoshoot of their products. And that’s roughly what I wanted to say: exchange in the community is very important. There is so much expertise about online retail, about Ebay as a platform, about our customers. Just talking to each other, learning from one another, going to such events and then taking something from the others, from the whole community, and also contributing something. That makes the platform much better overall.
Vincent: I think I was even there at the roadshow. Two years ago, you say?
John: Yes.
Vincent: Sounds very, very familiar. That’s a nice anecdote. How about you, Carsten?
Carsten: Yes, like many people right now I’m totally excited about the topic of AI. I’m currently renovating a bit at home. I’ve changed my living room to different colors and other window colors. It’s simply amazing what you can do with it. But — and here comes the “but” — with legal topics, AI really hallucinates like crazy, and there are already the first cases from the US where the courts say, lawyer, rewrite this for me, because the judgments you’re citing don’t even exist. And I’ve also experienced more than once that our sellers who are in warning-letter defense then asked ChatGPT themselves and said, yes, but it’s like this and that, and we said, no, unfortunately not, that’s not how it is. And that means I really wouldn’t rely on it yet. And who knows whether one can ever rely on it completely.
Vincent: I’ve noticed that too. I think you can of course say, better AI than no information at all. But best of all, of course, get information through our cooperation.
John: AI is a very powerful tool, but just a tool. And that’s not necessarily the solution.
Vincent: Yes, and it’s difficult to verify when you don’t have specialist knowledge.
John: It always sounds so perfect, what comes out. You don’t know exactly what’s invented.
Vincent: Yes. Absolutely. Thank you very much for joining us, Carsten and John. Warning letters are really annoying, but with the offers and the information from today’s episode, you should be well armed here. We mentioned a lot today. We talked about the free legal advice. We talked about the legal texts, generally about our cooperation with Trusted Shops. We’ll put all the information about that in the show notes. There it will also be explained again how you get the shop subscription and how you can then take advantage of all the services. Thank you for listening, and see you next time on "Alles Top. Gerne wieder!"
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