Time and again, Internet users use allegedly "free" offers on the Internet and then receive astonished bills for the allegedly free "services". From the appearance and the texts of the visited Internet pages, it is usually not clear that the use of the visited Internet pages is subject to a charge.
However, users of these websites are almost always required to register prior to use under various pretexts, in the context of which the providers' general terms and conditions must be accepted and all relevant user data must be provided.
Through this registration, the provider of these internet offers receives all relevant billing data on the one hand and on the other hand, the general terms and conditions (GTC) of these providers usually contain a passage stating that the person who accepts these GTC concludes, for example, a 12-month contract at a price of € 59.00 with the provider of the internet offer.
In its judgement of 16.1.07, AZ 161 C 23695/06, the Amtsgericht München (Munich Local Court) stated that if the obligation to pay is hidden in the general terms and conditions, this clause in the general terms and conditions may be unusual, surprising and thus invalid if, according to the appearance of the website, a service subject to a charge was not to be expected.
However, when this is the case can only be judged on a case-by-case basis by looking at the individual website.
The plaintiff in the case to be decided by the Munich Local Court operated various internet projects and offered a wide variety of services on its internet pages. On one website, it offered the possibility of having one's own life expectancy calculated. After answering certain questions, this information was evaluated using scientific statistics and the result was made available for download in the form of a certificate.
When calling up the page, the internet user first reached the start page. There, the service was described and reference was made to competitions. On the registration page, the services and advertising material (prizes and vouchers) were presented again and a registration form was provided. Under the input mask for the user data was a link to the general terms and conditions, below which was the registration button. The general terms and conditions first had to be accepted by clicking on them, then registration was possible. Somewhat below the registration button was a text of several lines which, among other things, referred to the user fee of 30 euros. The exact regulation on this was within the general terms and conditions.
The defendant in this case had her life expectancy calculated. However, when she received an invoice for 30 euros, she refused to pay on the grounds that she had not been able to see that the service offered also cost anything. The plaintiff was of the opinion that by declaring that she had read and accepted the general terms and conditions, the price had been effectively agreed.
The AG Munich, before which the action was brought, dismissed it.
The judge examined the website in question and came to the conclusion that the visitor was deliberately kept from knowing that a service was being offered for a fee. The visitor was lured by a competition and a voucher without being informed of the costs. A reference to a "commercial" purpose alone was not sufficient. This could also mean advertising partners who profit from the collection of addresses from the competition. Registration was easily possible without having seen the notice about the prize, which was located below the registration button. When clicking on and confirming the general terms and conditions, it was not to be expected that the obligation to pay would be hidden here. In principle, payment obligations can also be regulated in general terms and conditions, but in this specific case, the agreement was presented for the first time in the general terms and conditions as a contract subject to a fee. Overall, the provision in the general terms and conditions was, according to the overall circumstances, the structure and the external appearance of the plaintiff's website, so unusual and therefore surprising that it was invalid.
The judgement is final.
If you have any questions on this topic, please do not hesitate to contact Goldberg Rechtsanwälte.
Judgment of the AG Munich of 16.1.07, AZ 161 C 23695/06
Source: Press release of the AG Munich
Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de
