In January 2025, the German Supervisory Authority of Hamburg (“HSA”) examined the practices of online retailers based in Hamburg as to whether they allowed consumers to make purchases without creating a user account. This was mentioned in a press release issued by the HSA regarding a ruling by the Hamburg Higher Regional Court confirming a HSA’s decision that online retailers may, in certain circumstances, require consumers to create a user account. This, in turn, follows the guidance published by the German supervisory authorities (“German SAs”) in 2022 (in German), which stated that online retailers generally may not require consumers to create a user account in order to make a purchase.

Background: German SAs’ Guidance

According to the German SAs, there may be practical reasons for consumers to create an account for online purchases (e.g., to keep relevant information for future purchases), but it cannot be assumed that they are always interested in doing so. Therefore, consumers should be able to shop online without creating an account.

With respect to the processing of the consumer’s account information (e.g., username, password, order history), the German SAs take the view that the creation of an account is generally not necessary for the performance of the purchase contract so that the online retailer generally may not rely on this legal basis (Article 6(1)(b) GDPR). However, the German SAs also recognized that there may be situations where online retailers may require consumers to create an account, for example, specialized dealers for certain professional groups. In any case, the online retailer must limit the processing of the personal data to the extent necessary in order to comply with the data minimization principle (Article 5 (2) (c) GDPR). For example, if a consumer chooses not to create an account, the online retailer should only collect and further process the data necessary to fulfill the order and should delete the data after that fulfillment, unless the online retailer is required by law to archive the data.

In the absence of “contractual performance” as a legal basis (see above), the online retailer requires the consumer’s consent (Article 6(1)(a) GDPR) for the processing of his or her data in connection with the creation of an account, according to the German SAs.  As this consent must be freely given, the consumer should have the choice to make a purchase with or without a user account.  Consumers that choose not to create a user account should not suffer any disadvantages; in particular, the online trader should not make it more difficult to place an order or reduce the level of security for the protection of personal data.

For consumers who choose to create an account, online retailers may only use account information (such as order history) for advertising purposes if they obtain separate consent from the consumer. They also need separate consent to retain consumers’ payment information for future purchases.

HSA’ Sweep

According to the HSA, the majority of the Hamburg-based online retailers surveyed offered the possibility of making a purchase without creating a user account, in line with the above-mentioned guidelines of the German SAs.

However, the HSA also noted that online retailers may require consumers to create a user account in particular in the following circumstances – if the online retailer:

• operates a marketplace with many affiliated merchants and centralized consumer support;
• needs to manage a large number of returns and enquiries to third party merchants through a single platform;
• collects only the data necessary to fulfil the contract with the consumer and only stores this data for specific purposes (e.g., for tax purposes); and
• deletes consumers’ personal data and inactive accounts within a reasonable period of time.

The HSA nevertheless stresses that, in case of doubt, online retailers should offer consumers the possibility to make purchases without creating a user account.

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The Covington Privacy & Cyber team continues to keep a close eye on the guidance issued by European supervisory authorities and how it is being applied by courts and regulators.  If you have any questions, feel free to reach out to any member of the team.

This blog post was written with the contributions of Alberto Vogel.