The Regional Court of Frankfurt am Main has refused to open main proceedings against two accused individuals, who are charged with fraudulent acts to the detriment of numerous users in connection with online service offerings.
The public prosecutor's office considers the respective elements of fraud to be fulfilled insofar as the offering companies, whose responsible parties are alleged to have been the accused, offered services, such as route planning, which are usually available for free on the internet, while concealing a payment obligation from users. According to the public prosecutor's office, user deception exists particularly because the accused, with fraudulent intent, placed the notice that a fee of up to €60 is to be paid for the use of the service offered on the website in such a way that it could be overlooked by users, thereby creating the false impression that the service was free of charge.
In this context, investigations have revealed that users were initially prompted – for instance, via a sweepstakes – to input their personal data, including name, date of birth, address, and email address, into a registration form. The request for these details was marked with an asterisk (*). It was only further down the website, potentially requiring scrolling depending on the display properties, that the asterisk notice, disclosing the price and the obligation to pay the corresponding fee upon service utilization, was presented in an unhighlighted fashion.
In its ruling on the admissibility of the indictment, the competent chamber of the Regional Court concluded that the actions attributed to the defendants do not satisfy the elements of fraud (Section 263 German Criminal Code).
While the fact that details regarding the payment obligation are only mentioned at the end of the text situated below the registration form might indicate a concealment of the chargeability, it does not automatically imply deception merely because the chargeability may not be immediately apparent. The ruling states verbatim: There is no general principle of legitimate expectation dictating that, for services – whether online or in other aspects of life – one must be able to discern at first glance that an offer is subject to a fee. On the contrary, it is by no means unusual for such information – or details concerning the amount of the remuneration – to become evident only upon a more thorough review of the offer. Furthermore, the public prosecutor's office does not allege that the accused – at least in the cases currently under indictment – actually failed to provide the advertised services or downloads, or that they would not be provided upon request.
Moreover, the text containing the notice is only a few lines long, and the price of the services is visually emphasized through bold print and its strategic placement at the end of the sentence. Consequently, it can be readily apprehended even by merely skimming.
At the latest, when entering personal data required for registration, a more diligent engagement with the content of the respective website is indicated, even from the perspective of an average internet user. This holds true even when considering the offered sweepstakes. For, even if internet users might have presumed a connection between data input and the sweepstakes, the mere act of entering sensitive data – as opposed to simply retrieving information – mandates a more thorough examination of the rationale behind this input requirement. This also entails scrutinizing the website more closely than during 'mere browsing'.
The act of entering data into an online form is thus entirely comparable to completing a paper form, where one typically reviews or acknowledges the document's content with heightened attention. This degree of diligence or attentiveness is reasonably expected even from a potentially casually observant internet user, particularly at the point where they are prompted to input personal data. This is especially true given that the user must not only enter their own data but also confirm by checking a box that they have acknowledged the General Terms and Conditions (AGB) – which, in turn, also stipulate the chargeability – before they can even proceed to utilize the service.
It is also not the case that an internet user is required to register for every offer, including free ones. For instance, this is frequently not necessary when accessing complimentary review portals or route planners.
While the asterisk notice may indeed go unheeded by many internet users, this fact, much like the circumstance that many individuals nowadays may not read General Terms and Conditions, does not negate that the information concerning chargeability is presented in a universally discernible format.
The decision is not yet legally binding. It has been contested by the public prosecutor's office through an immediate appeal.
Paragraph 1 of Section 263 of the German Criminal Code stipulates the following wording:
“Whoever, with the intent to unlawfully obtain a pecuniary advantage for himself or a third party, damages the assets of another by inducing or maintaining an error through the misrepresentation of false facts or by distorting or suppressing true facts, shall be punished with imprisonment for up to five years or a fine.”
Source: Press release of the Regional Court Frankfurt am Main.
Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
