Bait calls ("ping calls") constitute fraudulent misrepresentation

Many a telephone owner has had a call that only rang once (a so-called "ping call"). If a callback to the number displayed as a result of this call turns out to lead only to a chargeable tape recording, the ping call is a fraudulent call.
tape announcement, the ping call constitutes fraudulent deception. This has now been decided by the 1st Criminal Senate of the Oldenburg Higher Regional Court (1 Ws 371/10).

The defendants had obtained 0137 numbers from a network operator in December 2006. Several hundred thousand "ping calls" were then made via special computers during the 2006 Christmas period. The telephone display of the called parties showed the
0137 number appeared on the telephone display, but it could only be recognized if one looked closely because the German code 49 had been prefixed and the first zero had been omitted. Around 786,850 telephone subscribers called back the displayed number. However, the callback resulted only in a useless but chargeable tape announcement: "Your call has been counted". Each individual callback triggered costs of 98 cents.

The Osnabrück Regional Court did not admit the charge of fraud because such a ping call was not a false pretence. It did not differ externally from the call of a subscriber who had dialled the wrong number.

On appeal by the public prosecutor's office, the 1st Criminal Senate of the Oldenburg Higher Regional Court now allowed the charges to proceed to trial. The called persons had been fraudulently deceived. The decoy calls would have implicitly included the statement that someone wanted to have a conversation with the called party. The called subscribers, who would have called back the indicated telephone number in confidence in such a communication interest, had therefore succumbed to a deception. The defendants had thus pursued the intention of obtaining an unlawful pecuniary advantage through the provoked nonsensical callbacks.

In the specific case, the Federal Network Agency had already switched off the chargeable number six days after the ping calls in question and prohibited the network operators from collecting the charges from the telephone customers. The admission of the charge is therefore limited to the accusation of attempted fraud.

Decision of the 1st Criminal Division of the OLG Oldenburg

Source: Press release of the OLG Oldenburg

Goldberg Attorneys at Law
Attorneys at Law Michael Ullrich, LL.M. (Information Law)
Specialist attorney for information law (IT law)