Osnabrück Local Court, 19 October 2010, Ref.: 66 C 83/10 (1)
Subscription traps are now a widespread phenomenon on the Internet. A wide variety of services are offered, for the use of which the respective customers must register on the provider's website. The services offered include, for example, route planners, "free" text messages, intelligence tests, entry of the user's website in search engines, search engine optimisation, genealogical research, use of software, etc.
The operators of these subscription traps generally work on the basis of users' fear that they have actually concluded a contract that obliges them to pay. To this end, the respective websites give the impression of being free of charge, but then either in the general terms and conditions, on a subpage or hidden on the main page, reference is made to the charging of fees for the service.
After using the service/registering, users are then quickly asked to pay within a short deadline and warned if they fail to pay. Many users are actually persuaded to pay the amount demanded by this approach.
However, the price information provided in the above-mentioned manner does not comply with the requirements of Section 6 of the German Telemedia Act and Section 1 (6) of the German Price Indication Ordinance.
According to Section 6 (1) No. 1 TMG, commercial communications must be clearly recognisable as such and according to Section 1 (6) of the Price Indication Ordinance, price indications must comply with the general public's perception and the principles of price clarity and price truthfulness. Anyone who is obliged to provide information in accordance with this regulation must clearly assign it to the offer or advertising and make it easily recognisable and clearly legible or otherwise easily perceptible.
Subscription traps are therefore the subject of numerous court decisions. In this context, for example, the court decision of the Hanau Regional Court of 7 December 2007 (Ref.: 9 O 870/07) should be mentioned. The defendants in this legal dispute operated various services for the use of which they charged between 59.00 euros and 79.95 euros. The prices were stated in bold print on the main page, but at the bottom of the page, to which the user was only referred with an asterisk next to the entry fields. The Hanau Regional Court explained:
"The asterisk in the text and the asterisk notice itself are interrupted by a conspicuous button that cannot be overlooked, which can be used to start the test and is therefore located before the reference to the price. Finally, sufficient declaration of the price is not guaranteed by the asterisk text itself. On the one hand, this is a continuous text that consists of several sentences and initially refers to the storage of the IP address and the like. On the other hand, the price information is only included in the last sentence at the bottom of the website without forming a further paragraph or similar. In view of this position and the small font chosen, the bold print of the price is not sufficient to fulfil the requirement of price clarity. This is all the more true as there are a number of words and buttons on the websites highlighted by bold print, colour and size, which are much more conspicuous to the consumer than the price information, which fades in comparison."
In the case mentioned above, the Osnabrück Local Court had to decide whether a lawyer who worked together with the operator of a subscription trap and issued a warning to customers on his behalf was liable to pay damages in the amount of the opposing party's legal fees.
Facts of the Case In 2009, the plaintiff (consumer) registered on a website in order to download and use software programmes free of charge. The company that operated the website did not indicate on the main page that the use of the website was subject to a charge. The reference to the costs of the annual subscription was only made on a sub-page and even there in a manner that did not comply with the relevant regulations.
After the plaintiff refused to pay the invoiced sum of 96.00 euros, the defendant lawyer sent the plaintiff a reminder for payment of the sum plus the reminder and lawyer's fees.
In defence, the plaintiff again hired a lawyer himself, who rejected the claim. The defendant then declared a waiver of the claim. The plaintiff then filed a lawsuit with the Osnabrück District Court in order to be reimbursed for the legal fees incurred by way of compensation.
Osnabrück Local CourtThe Osnabrück District Court held that the plaintiff was entitled to damages in the amount of the lawyer's fees pursuant to Section 823 (2) BGB in conjunction with Sections 263, 23, 27 StGB.
According to the court, a contract between the operator of the website and the plaintiff had not been concluded because the plaintiff had not made a legal declaration justifying his obligation to pay costs, as the price information on the website did not comply with the relevant regulations. By intentionally making unauthorised claims against the plaintiff, the operator had therefore committed attempted fraud in accordance with Sections 263 and 23 of the German Criminal Code (StGB).
The request for payment by the defendant was therefore to be classified as aiding and abetting attempted fraud in accordance with §§ 263, 23, 27 StGB, as a lawyer who takes over the collection of a claim must check its justification before taking further steps to enforce it (BGH, decision of 9 June 2008, AnwSt (R) 5/05).
Source: Osnabrück Local Court
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