On January 14, 2016, the First Civil Senate of the Federal Court of Justice, responsible inter alia for competition law, ruled that invitation emails sent via the "Find Friends" function of the internet service "Facebook" to individuals not registered as "Facebook" members constitute competitively unlawful harassing advertising. The First Civil Senate further ruled that "Facebook" misled users regarding the nature and extent of the use of imported contact data during the registration process for the "Find Friends" function, which was made available in november 2010.
The plaintiff is the Federation of German Consumer Organisations. The defendant, domiciled in Ireland, operates the "Facebook" internet platform in Europe.
The plaintiff seeks an injunction against the defendant regarding the design of its "Find Friends" function, which prompts users to import their email address files into "Facebook's" database, and regarding the sending of invitation emails to individuals not yet registered as users of the platform. The plaintiff considers the sending of invitation emails to unregistered individuals to constitute harassing advertising by the defendant within the meaning of § 7 para. 1 and 2 no. 3 of the Unfair Competition Act (UWG). Furthermore, the plaintiff asserts that the defendant unlawfully misleads users during its registration process concerning the extent to which email address files imported by users would be utilized by "Facebook."
The Regional Court granted the claim. The appeal was unsuccessful. The Federal Court of Justice dismissed the defendant's appeal on points of law.
Invitation emails from "Facebook" sent to recipients who have not expressly consented to receive them constitute unreasonable harassment within the meaning of § 7 para. 2 no. 3 of the Unfair Competition Act (UWG). These invitation emails are considered advertising by the defendant, even if their dispatch is triggered by a user registering with "Facebook," because it is a function provided by the defendant intended to draw third parties' attention to "Facebook's" offering. Recipients perceive the invitation emails not as private messages from a "Facebook" user, but as advertising from the defendant.
Through the information provided by the defendant in november 2010 during registration for the Facebook function "Find Friends," the defendant misled registering users, contrary to § 5 of the Unfair Competition Act (UWG), regarding the nature and extent of the use of email contact data. The notice displayed in the first step of the registration process, "Are your friends already on Facebook?", does not clarify that the email contact data imported by the user will be evaluated and that invitation emails will also be sent to individuals not yet registered with "Facebook." The additional information provided under the electronic link "Your password will not be stored by Facebook" cannot rectify the misleading impression, as user awareness of this information is not ensured.
Judgment of the Federal Court of Justice of January 14, 2016, File Reference I ZR 65/14 – Find Friends
Lower Courts:
Higher Regional Court Berlin – Judgment of January 24, 2014 – 24 U 42/12
Regional Court Berlin – Judgment of March 6, 2012 – 16 O 551/10
Source: Press Release of the Federal Court of Justice
Goldberg Attorneys at Law 2016
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
