The First Civil Senate of the Federal Court of Justice (BGH), which is responsible, inter alia, for competition law, ruled on 14 January 2016 that the invitation e-mails sent by means of the "Find Friends" function of the internet service "Facebook" to persons who are not registered as "Facebook" members constitute harassing advertising that is impermissible under competition law. The First Civil Senate further ruled that "Facebook" misled the user about the type and scope of the use of imported contact data in the registration process for the "Find Friends" function made available in November 2010.
The plaintiff is the Federal Association of Consumer Centres and Consumer Associations in Germany. The defendant, based in Ireland, operates the internet platform "Facebook" in Europe.
The plaintiff sued the defendant for injunctive relief because of the design of the "Find Friends" function provided by the defendant, which prompts the user to import his email address files into the "Facebook" database, and because of the sending of invitation emails to persons not yet registered as users of the platform. The plaintiff considers the sending of invitation e-mails to persons who are not registered as users of the platform to be advertising by the defendant which harasses the recipient within the meaning of § 7 para. 1 and 2 no. 3 UWG. The plaintiff further claims that the defendant unlawfully deceives users in the course of their registration process about the extent to which e-mail address files imported by the user are used by "Facebook".
The district court upheld the action. The appeal was unsuccessful. The Federal Supreme Court dismissed the defendant's appeal.
Invitation e-mails from "Facebook" to recipients who have not expressly consented to receive the e-mails constitute unreasonable harassment within the meaning of Section 7 (2) no. 3 UWG. The invitation e-mails are advertising by the defendant, even if their sending is triggered by the user registering with "Facebook", because it is a function provided by the defendant to draw the attention of third parties to the offer of "Facebook". The invitation emails are not understood by the recipient as a private message from the "Facebook" user, but as an advertisement from the defendant.
By the information provided by the defendant in November 2010 when registering for the Facebook function "Find friends", the defendant misled registering users about the type and scope of the use of the email contact data, contrary to Section 5 UWG. The notice "Are your friends already on Facebook?" displayed in the first step of the registration process does not inform the user that the e-mail contact data imported by the user will be evaluated and that the invitation e-mails will also be sent to persons who are not yet registered with "Facebook". The additional information provided under the electronic reference "Your password is not stored by Facebook" cannot eliminate the misleading effect because it is not ensured that the user is aware of it.
Judgment of the Federal Court of Justice (BGH) of 14.01.2016, file number I ZR 65/14 - Freunde finden
Lower courts:
KG Berlin - Judgment of 24 January 2014 - 24 U 42/12
LG Berlin - Judgment of 6 March 2012 - 16 O 551/10
Source: Press release of the BGH
Goldberg Attorneys at Law 2016
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
