The Regional Court of Frankfurt am Main acquitted the defendant on other charges but convicted him of attempted fraud, sentencing him to two years' imprisonment, the execution of which was suspended on probation. Due to the excessively long duration of the proceedings, the court ordered that four months of the imposed sentence be considered as already served.
According to the findings of the Regional Court, the defendant operated various fee-based websites, each with an almost identical appearance, including a so-called route planner. Using the route planner required the user to first enter their first and last name, address, email address, and date of birth. Due to the defendant's deliberate design of the page with this intent, it was difficult for casual readers to discern that it was a fee-based service. Clicking the “Calculate Route” button, following a small notice printed at the bottom of the page at the end of a multi-line text, led to the conclusion of a paid subscription, which granted the user three months of access to the route planner for €59.95. This footnote text could only be perceived after prior “scrolling,” depending on the monitor size and screen resolution used.
After the expiration of the withdrawal period, users initially received a payment request. The defendant sent payment reminders to those who had not paid; some users also received letters from lawyers threatening them with a “SCHUFA” entry if they failed to pay.
The Regional Court convicted the defendant only for attempted fraud, considering the unique design of the page as a single act, and given that the causal link between the action and a specific customer's error could not be proven.
The defendant appealed this judgment with a revision based on violations of formal and substantive law. He primarily argued that, considering European legal requirements, there was no deceptive act, and furthermore, users had not suffered any financial damage.
The 2nd Criminal Senate dismissed the appeal. It stated that the deceptive design of the website deliberately obscured the fee-based nature of the service offered. This constituted an act of deception within the meaning of § 263 of the German Criminal Code (StGB). The detectability of the deception through careful reading does not preclude criminal liability, as the action was specifically undertaken to exploit the inattention or inexperience present in a – albeit smaller – portion of users.
This also applies considering Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (Unfair Commercial Practices Directive). In any case, the Directive does not lead to a restriction of criminal legal protection here.
Furthermore, financial damage was established. This damage consists of the burden of an existing or merely apparent liability, as the consideration, in the form of a three-month access possibility, was practically worthless to the user.
Judgment of the BGH (Federal Court of Justice) of March 5, 2014 – 2 StR 616/12
Previous Instance:
Regional Court Frankfurt am Main – Judgment of June 18, 2012 – 5-27 KLs 12/08
Source: Press release of the Federal Court of Justice
Goldberg Attorneys at Law 2014
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
