The Frankfurt am Main Regional Court acquitted the defendant and sentenced him to two years' imprisonment for attempted fraud and suspended the execution of the sentence. Due to the excessive length of the proceedings, it ordered that four months of the sentence imposed be considered executed.
According to the findings of the Regional Court, the defendant operated various websites for a fee, each of which had an almost identical appearance, including a so-called route planner. In order to use the route planner, the user had to enter his first name, surname, address, e-mail address and date of birth. Due to the design of the page by the defendant with this intention, it was difficult for casual readers to recognise that this was a chargeable offer. Pressing the button "Calculate route" led, after a small note printed at the bottom of the page at the end of a multi-line text, to the conclusion of a paid subscription, which granted the user access to the route planner for three months at a price of 59.95 €. Depending on the size of the monitor and the screen resolution used, this footnote text could only be perceived after prior "scrolling".
After the expiry of the withdrawal period, the users first received a demand for payment. To those who had not paid, the defendant sent payment reminders; some users also received letters from lawyers threatening them with an entry in the "SCHUFA" if they did not pay.
In view of the unique design of the page, the Regional Court only convicted the defendant of one offence and in view of the fact that the causality of the act for a concrete error of a customer had not been proven, only of attempted fraud.
The defendant appealed against this judgement with his appeal based on the violation of formal and substantive law. Above all, he objected to the fact that, taking into account the requirements of European law, there was no deceptive act and that, moreover, the users had not suffered any pecuniary loss.
The 2nd Criminal Senate dismissed the appeal. It stated that the design of the website aimed at deceiving the public by deliberately concealing the fact that the service offered was subject to a charge. This constituted an act of deception within the meaning of section 263 of the Criminal Code. The fact that the deception was recognisable on careful reading did not exclude criminal liability, because the act had been undertaken precisely with a view to exploiting the inattention or inexperience of a - albeit small - proportion of users.
This also applies in consideration of 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 the protection of legal interests under criminal law.
There was also a pecuniary loss. This lies in the burden of an existing or even only apparent liability, since the consideration in the form of a three-month possibility of use is practically worthless for the user.
Judgment of the Federal Supreme Court of 5 March 2014 - 2 StR 616/12
Lower court:
Frankfurt am Main Regional Court - Judgment of 18 June 2012 - 5-27 KLs 12/08
Source: Press release of the BGH
Goldberg Attorneys at Law 2014
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
