The Higher Regional Court of Frankfurt am Main has ruled that in the case of so-called “subscription traps on the internet,” i.e., internet offers where the user cannot readily expect the offer to be subject to a charge, and where the visual presentation of a website does not suggest a charge, a claim for payment by the provider only exists if there is a clear indication of the offer's cost.
According to the Higher Regional Court of Frankfurt am Main, this applies even more so because the attention span of an average consumer on the internet is rather low. Furthermore, consumers are accustomed to receiving extensive and useful service and download offers for free on the internet. Therefore, a consumer's obligation to pay only exists if there is a sufficiently clear indication of the cost of the offer in question.
The Higher Regional Court of Frankfurt am Main also holds the view that the mere fact that a user must register with their name and address details to gain access to the database is not sufficient to lead an average consumer to realize that the service being used is subject to a charge, unless this charge is additionally indicated in an easily recognizable and clearly perceptible manner. While the fact that a user must register with their name and address details to gain access to the database is, in principle, suitable for arousing a certain degree of suspicion, it does not lead the average consumer to realize that the offer is subject to a charge if the cost is not indicated in an easily recognizable and clearly perceptible manner.
Furthermore, in the opinion of the Higher Regional Court of Frankfurt am Main, it is also implausible for a consumer who generally expects an offer to be subject to a charge to assume that merely pressing an input button leads to a contractual obligation and not initially to the mere possibility of getting to know the service offer better, only then, in a later stage, for example before a desired download or the retrieval of further leading information, to be faced with the decision of whether or not to enter into a payment obligation.
The Higher Regional Court of Frankfurt am Main further holds the view that it is not conceivable for an average consumer to enter into a 12-month contractual commitment with a corresponding and not insignificant payment obligation for that period by merely pressing a button.
According to the Higher Regional Court of Frankfurt am Main, a footnote asterisk indicating that all fields of the input mask must be filled out completely does not lead to a different assessment. The consumer expects such a notice to provide information about the necessity of the entries and the consequences of omissions. However, they do not expect such an asterisk to conceal a notice about the cost of the corresponding offer. According to the Higher Regional Court of Frankfurt am Main, an asterisk notice is insufficient to clarify the cost of an offer if it is not clearly recognizable to the consumer that the asterisk leads to a price indication and a notice about the cost of the offer.
Price indications in General Terms and Conditions (GTC) also do not change this legal assessment. According to the Higher Regional Court of Frankfurt am Main, price indications within General Terms and Conditions are also not easily discoverable for the average consumer. Therefore, a price indication in the General Terms and Conditions is not sufficient to meet the requirements of the Price Indication Ordinance (PAngV) without further ado. An average consumer, who is referred to the General Terms and Conditions during the registration process, is not simultaneously informed by this reference that they are entering into a paid contract by registering. Furthermore, extensive sets of clauses such as General Terms and Conditions and license terms are notoriously accepted by most consumers without having read them beforehand. According to the Higher Regional Court of Frankfurt am Main, this also applies to consumers who are experienced in business matters and therefore know that no provisions that are unreasonable or surprising can be effectively agreed upon in General Terms and Conditions anyway.
The Higher Regional Court of Frankfurt am Main also found that a GTC clause with the wording “Payment is due immediately upon conclusion of the contract” is invalid according to § 307 BGB in conjunction with § 614 BGB, as it unduly disadvantages the contracting parties contrary to the principle of good faith. According to § 614 BGB, remuneration is only due after the service has been rendered. The aforementioned provision in the General Terms and Conditions deviates from this statutory regulation. Such advance payment clauses are only permissible if there is a factually justified reason for them and no overriding interests of the customer are opposed. The unreasonableness of the clause can arise from the duration of the advance payment period. In the case of a 12-month contract, the Higher Regional Court of Frankfurt am Main assumed such a violation and unreasonableness of the clause.
Source: Higher Regional Court of Frankfurt am Main, Judgment of December 4, 2008, File reference 6 U 187/07
Due to the multitude of so-called “subscription traps on the internet,” the judgment of the Higher Regional Court of Frankfurt am Main is likely to be of considerable importance. Should you therefore receive payment demands from operators of so-called “subscription traps on the internet,” you should contact a specialized lawyer. We are also prepared to represent your legal interests in these cases.
Goldberg Rechtsanwälte
Michael Ullrich, LL.M. (Information Law)
Attorney-at-Law and
Specialist Lawyer for Information Technology Law (IT Law)
Email: info@goldberg.de
