EMZETT.Right of Withdrawal for Digital Content (§ 356(5) BGB)
In short: A special rule in German law with which a seller of digital content (software, downloads) can specifically switch off the normal 14-day right of withdrawal — otherwise a customer could download a product and still cancel for free for 14 days.
In more detail: For the rule to apply, the customer must explicitly agree before the actual download that they know their right of withdrawal expires when the download starts — a mere mention in the terms and conditions isn’t enough; it needs a separate, active confirmation step (e.g. a checkbox directly in front of the download button), and this check should also be enforced on the server, not just as a UI lock (otherwise it can be bypassed).
Our context: Added at Emzett afterwards as a mandatory checkbox before every download (free or paid), after the terms-and-conditions update revealed that this confirmation was still missing in the existing checkout/free-download flow.
In Depth
Not legal advice, but a general classification. The regular 14-day right of withdrawal (§ 355 BGB) exists to compensate for the structural disadvantage of distance contracts — unlike in a shop, you can’t touch/inspect goods before buying them. For purely digital content (software, e-books, streaming access) this justification doesn’t apply in the same way, but at the same time a new risk of abuse arises: once the download has taken place, the digital content can no longer be “returned” — a withdrawal would effectively give the customer a free download plus their money back.
The central requirement of “before the download, active, not hidden in the terms and conditions” exists precisely for this reason: without this explicit, conscious consent, the right of withdrawal would remain in place even if the terms and conditions say something else elsewhere — a mere mention in a text that hardly anyone reads in full anyway isn’t legally sufficient as proof of a conscious decision.
<label>
<input type="checkbox" required checked={consentGiven} onChange={...} />
I agree that my right of withdrawal expires when the download begins.
</label>How it differs from physical products
For physical products (e.g. merchandise in the shop), the normal 14-day right of withdrawal still applies without this special rule — the difference from digital content lies precisely in the fact that physical goods can actually be sent back, whereas a download can’t be “returned”. A shop that offers BOTH (digital and physical products) therefore has to handle the right of withdrawal differently per product type — the checkbox confirmation belongs exclusively in the checkout flow for digital content, not in the one for physical goods.
Documentation obligation
Since in a dispute the seller has to prove that consent was ACTUALLY given and BEFORE the download, a mere front-end checkbox without evidence isn’t enough — it makes sense to link the time and the fact of consent on the server with the respective purchase/download record (e.g. a timestamp field withdrawalConsentAt in the orders table), so that consent can be proven afterwards if in doubt.
See also: Legal notice requirement (§ 5 TMG), GDPR data export