The Higher Regional Court (OLG) of Frankfurt am Main ruled that in the case of so-called "subscription traps on the internet", i.e. internet offers where it is not immediately expected that the offer will be subject to a charge and where the visual presentation of an internet page does not suggest that a charge will be made, a claim for payment by the provider only exists if there is a clear indication that the offer is subject to a charge.
In the opinion of the Higher Regional Court of Frankfurt am Main, this applies all the more because the attention of an average consumer on the internet is rather low. Moreover, the consumer was also used to receiving extensive and useful service and download offers free of charge on the internet. Therefore, a consumer's obligation to pay only exists if there is a sufficiently clear indication that the offer in question is free of charge.
The OLG Frankfurt a.M. also takes the view that the mere fact that a user has to register by stating his name and address data in order to gain access to the database is not sufficient to lead an average consumer to the conclusion that the offer used is subject to a charge, if this obligation to pay is not additionally pointed out in an easily recognisable and clearly perceptible manner. The fact that a user had to log in and register, stating his name and address details, in order to obtain access to the database was, in principle, capable of arousing a certain degree of suspicion, but this did not lead the average consumer to the conclusion that the offer was subject to a charge if the fact that it was subject to a charge was not pointed out in an easily recognisable and clearly perceptible manner.
Furthermore, in the opinion of the Higher Regional Court of Frankfurt a.M., a consumer who generally expects a chargeable offer is also far from assuming that the activation of an input button already leads to a contractual obligation and not initially to the mere possibility of getting to know the service offer in more detail, in order to then only in the further course, for example before a desired download or the request for further leading information, be confronted with the decision to enter into a payment obligation or not.
Furthermore, the Higher Regional Court of Frankfurt a.M. is of the opinion that it is out of the question for an average consumer to enter into a 12-month contractual obligation with a correspondingly not insignificant payment obligation for this period by pressing a button.
In the opinion of the OLG Frankfurt a.M., an asterisk with the request to fill in all fields of the input mask completely does not lead to a different assessment. The consumer expects such a notice to provide information, for example, about the necessity of the entries and the consequences of omission. However, he does not expect that such an asterisk hides an indication that the corresponding offer is free of charge. In the opinion of the OLG Frankfurt a.M., an asterisk is insufficient to inform the consumer about the consideration of an offer if it is not clearly recognisable for the consumer that the asterisk leads him to a price indication and to an indication of the consideration of the offer.
Price quotations in general terms and conditions (GTC) do not change this legal assessment either. According to the Higher Regional Court of Frankfurt a.M., price quotations within general terms and conditions are also not easy to find for the average consumer. Therefore, a price indication in the general terms and conditions does not easily satisfy the requirements of the Price Indication Ordinance (PAngV). The average consumer, who is referred to general terms and conditions in the registration process, is not at the same time informed by the reference to these general terms and conditions that he is concluding a contract against payment by registering. Moreover, extensive clauses such as general terms and conditions and licence conditions are known to be accepted by most consumers as a rule without having read them beforehand. According to the OLG Frankfurt a.M., this also applies to consumers who are well versed in business matters and therefore know that in general terms and conditions no provision can be effectively agreed anyway that is unmeasured or surprising.
The Higher Regional Court (OLG) of Frankfurt am Main also found that a general terms and conditions clause with the wording "Payment is due immediately after conclusion of the contract" is ineffective according to Section 307 of the German Civil Code (BGB) in conjunction with Section 614 of the German Civil Code (BGB), as it unreasonably disadvantages the contractual partners contrary to the principle of good faith. According to section 614 of the German Civil Code (BGB), remuneration is only to be paid after the service has been rendered. The aforementioned provision of the General Terms and Conditions deviated from this statutory provision. Such advance performance clauses were only permissible if there was an objectively justified reason for them and no overriding interests of the customer conflicted with them. The unreasonableness of the clause could result in each case from the duration of the wholesale period. In the case of a 12-month contract, the Higher Regional Court of Frankfurt am Main assumed such a violation and an unreasonableness of the clause.
Source: OLG Frankfurt am Main, judgement of 04.12.2008, file number 6 U 187/07
Due to the large number of so-called "subscription traps on the Internet", the judgement of the Higher Regional Court of Frankfurt am Main is likely to be of considerable importance. If you receive payment requests from operators of so-called "subscription traps on the internet", you should therefore contact a specialised lawyer. We are also happy to represent your legal interests in these cases.
Goldberg Attorneys at Law
Michael Ullrich, LL. M.(Information Law)
Specialist lawyer for information technology law (IT law)