Website operators face legal and technical challenges as a result of the BFSG. They must adapt their websites to the requirements of the BFSG. Failure to do so could result in severe fines and possibly warnings under competition law.
I. Scope of application of the BFSG
The scope of application of the BFSG includes in particular "services in electronic commerce". According to the law, these are digital services that are offered via websites and applications on mobile devices and are provided electronically at the individual request of a consumer with a view to concluding a consumer contract. This covers almost all online trade. Companies that operate an online shop with offers for consumers must therefore implement the requirements of the BFSG when designing their website in future.
The law does not explicitly state whether the BFSG also covers digital pre-contractual actions. However, the wording of the law speaks in favour of including the digital performance of pre-contractual acts in the scope of application of the BFSG. A broad interpretation is also favoured by the meaning and purpose of the law, which is to provide people with disabilities with barrier-free access to contracts, see Section 1 para. 1 BFSG. The threshold for the intervention of the BFSG must be set low and is already exceeded if a website only offers the possibility to book appointments online for any type of service.
However, a mere advertising and information offer does not fall within the scope of the new law. Even a contact form on a website is probably not sufficient in itself.
Finally, the accessibility requirements do not apply to micro-enterprises that offer or provide services. "Micro-enterprises" are companies that employ fewer than ten people and either have an annual turnover of no more than 2 million euros or an annual balance sheet total of less than 2 million euros.
II Accessibility requirements
Insofar as the BFSG is applicable, products and services must be barrier-free in accordance with Section 3 para. 1 sentence 1 BFSG. This is the case if they can be found, accessed and used by people with disabilities in the generally customary manner, without particular difficulty and generally without outside assistance. However, the specific requirements for accessibility are not regulated in the BFSG itself. In turn, the ordinance is essentially based on general standards that must be met. According to Section 12 No. 3 BFSGV, websites must be designed in a consistent and appropriate manner that is perceivable, operable, understandable and robust. Additional requirements apply to certain services, cf. sections 13 et seq. BFSGV.
III Requirement of an accessibility declaration
The BFSG requires service providers to draw up a so-called accessibility declaration, see Section 14 para. 1 no. 2 BFSG in conjunction with Annex 3 no. 1 BFSG. Annex 3 No. 1 BFSG. In future, a website operator may only offer its services if it has prepared the information in accordance with Annex 3 No. 1 BFSG and has made this information accessible to the general public in an accessible form. According to Annex 3 No. 1 BFSG, the accessibility statement must be published in a clearly visible manner on the respective website.
Annex 3 No. 1 BFSG sets out minimum requirements for an accessibility statement: In addition to the requirements for the consumer information to be provided anyway in accordance with Art. 246 EGBGB, the following information is required in any case:
(a) general description of the service in an accessible format;
b) Descriptions and explanations necessary to understand how the service is provided;
c) a description of how the service fulfils the relevant accessibility requirements listed in the ordinance to be issued in accordance with Section 3 para. 2;
d) Indication of the competent market surveillance authority.
If you have any questions on this topic, we will be happy to advise you. We will check for you whether your website falls within the scope of the BFSG. If it does, we will support you in making your website accessible and formulating your accessibility statement in a legally compliant manner.
Dr Christian Wolff Simon Diethelm Meyer