A cease and desist letter arrives: the first 48 hours
Read the date first, not the accusation. A cease and desist letter names a deadline, a demand to sign a declaration and usually a cost claim, and the deadline is the only part that cannot wait while you take advice. Signing the enclosed declaration unread is the expensive mistake.
What the letter contains
Three parts, usually. An allegation that something on your site breaches a rule. A pre drafted declaration to sign, promising not to repeat it under a penalty. And a demand for costs.
The parts have different weights. The allegation may be right or wrong and can be checked. The costs can be disputed. The declaration is the part that binds you for years, because a penalty clause outlives the argument that produced it.
And the deadline is short, deliberately. That is what produces the two common errors: signing immediately to make it go away, or ignoring it in the hope that it does.
Neither is necessary. The deadline is real, but it is a deadline for responding, not for agreeing, and responding is something a qualified adviser can do inside it.
The first 48 hours
Hour 1: note the deadline and put it somewhere visible. Everything else follows from that date.
Hours 2 to 4: check the allegation yourself. In this field it usually concerns one of three duties, and all three are checkable in minutes: the imprint under section 5 DDG with its 8 categories, the total price rule, or the disclosure of whether and how reviews are verified. Take a screenshot of the page as it stands.
Day 1 to 2: take advice before signing anything. The enclosed declaration is written by the other side and typically reaches further than the law requires, and a modified declaration is a normal response rather than an act of defiance.
Then fix the underlying problem regardless of how the dispute ends. If the imprint really was missing an entry, the entry belongs there whether or not the letter was justified.
| When | Do | Do not |
|---|---|---|
| Hour 1 | Note the deadline | Panic about the amount |
| Hours 2 to 4 | Check the allegation, screenshot the page | Change the page without recording it |
| Day 1 to 2 | Take advice | Sign the enclosed declaration unread |
| After | Fix the underlying issue | Assume it will not happen again |
How to make the next one unlikely
Check the three duties once a year: imprint, prices, review disclosure. That is under an hour and it covers the majority of letters small businesses receive.
Keep a dated record of what you checked. A note saying the imprint was verified against the register in March is worth more later than a memory of having looked at it sometime.
Questions and answers
Should I sign the enclosed declaration?
Can I ignore the letter?
What is usually complained about?
Should I fix the page immediately?
Sources
- Section 5 Digitale-Dienste-Gesetz (DDG) The imprint duty most often at issue
- Section 5b Gesetz gegen den unlauteren Wettbewerb (UWG) The review disclosure duty
