The Regional Court of Frankfurt am Main has refused to open main proceedings against two defendants who are accused of fraud in connection with service offers on the internet to the detriment of numerous users.
The public prosecutor's office considers the respective elements of fraud to be fulfilled insofar as the companies offering the services, whose responsible persons were allegedly the defendants, offered services such as route planning, which are usually available free of charge on the internet, while concealing an obligation to pay on the part of the users. In the opinion of the public prosecutor's office, the users were deceived in particular because the defendants, with intent to defraud, placed the notice that a fee of up to € 60 was to be paid for the use of the service offered on the website in such a way that it could be overlooked by the users, thus giving them the misconception that the use of the service was free of charge.
In this respect, the investigations revealed that the users were first prompted - e.g. by means of a competition - to enter their personal data, such as name, date of birth, address and e-mail address, in a registration mask. The request to provide this information was marked with an *. Only in the further course of the website, which, depending on the characteristics of the computer screen, could be reached only after "scrolling", i.e. turning the page, was the asterisk notice displayed in an unemphasised manner with the information about the prize and the fact that the corresponding fee must be paid when the service is used.
In its decision on the admission of the indictment, the competent chamber of the Regional Court comes to the conclusion that the acts with which the accused are charged do not fulfil the elements of the offence of fraud ( § 263 StGB).
The fact that the information on the obligation to pay is only mentioned at the end of the text below the registration mask is an indication that the obligation to pay is concealed; however, the fact that the obligation to pay may not be recognisable at first glance does not necessarily mean that this is a case of deception. The decision literally states: "There is no general protection of legitimate expectations to the effect that it must be possible to recognise at first glance that services - whether on the internet or in other life - are subject to a charge. On the contrary, it is by no means unusual that such information - or also information about the amount of the fee - is only recognisable upon closer reading of the offer. However, the public prosecutor's office does not accuse the defendants of not actually providing the offered services or downloads or of providing them on demand - at least in the context of the cases charged in this case.
Furthermore, the text containing the notice is only a few lines long and the price of the services is also visually emphasised by bold print and by the choice of position at the end of the sentence. It is therefore easy to take note of even if you just skim over it.
At the latest when entering the personal data required for registration, a more careful consideration of the contents of the respective website is also indicated from the point of view of an average internet user. This also applies in consideration of the competition offered. For even if internet users should have suspected a connection between the data entry and the competition, the mere fact of entering sensitive data - as opposed to merely retrieving information - requires that a more careful examination of the background to the requirement for this entry be carried out beforehand. This also includes taking a closer look at the website than when "merely surfing".
Entering data into a form on the internet is comparable to filling out a paper form, where one generally also checks or takes note of the content of the document with increased attention. This degree of care and attention can also be expected of a possibly only cursorily attentive internet user at the latest at the moment when he or she is supposed to enter personal data. This applies all the more since the user not only has to enter his or her own data, but also has to confirm by ticking a box that he or she has taken note of the GTC (General Terms and Conditions) - which in turn also contain the chargeability - before he or she is even able to make use of the service.
It is also not the case that a user of the internet has to register with every - even free - offer. This is often not the case when visiting free rating portals or route planners.
The asterisk, on the other hand, may not be noticed by many internet users, but this, just like the fact that many people today may not read general terms and conditions, does not change the fact that the information on remuneration is available in a form that is recognisable to everyone.
The decision is not legally binding. It has been challenged by the public prosecutor's office with an immediate appeal.
The provision of § 263 StGB has the following wording in its paragraph 1:
"Any person who, with the intention of obtaining an unlawful pecuniary advantage for himself or herself or for a third party, damages the property of another by creating or maintaining a falsehood by false pretences or by distorting or suppressing true facts, shall be liable to a custodial sentence of up to up to five years or a fine."
Source: Press release of the LG Frankfurt a.M.
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
