Subscription Traps on the Internet

Hidden Subscription Traps

On the internet, clients unfortunately repeatedly experience that they are supposed to have entered into an alleged subscription without wanting to or even knowing about it. The bill usually arrives only after the possible cancellation period has expired.

If the bill is not paid, sharp reminders and letters from lawyers or collection agencies follow immediately with further demands that often significantly exceed the subscription fees.

Often, those who receive these letters then pay out of fear of further reprisals. But is this sensible? How should one react correctly? What do the courts say?

OLG Frankfurt (Decision of 17.12.2010, Case No. 1 Ws 29/09): Fraud conceivable

With the decision of the OLG Frankfurt from 17.12.2010, Case No. 1 Ws 29/09, the court has explained in refreshing clarity that, depending on the design of the internet presence, depending on the overall impression of the website, hidden subscription traps can constitute a criminally relevant so-called “implicit deception” of consumers, which then leads to a completed or attempted fraud.

Such an accusation of fraud can be raised especially when a planned approach becomes apparent. This is the case, for example, when a download option is offered for products that are usually available for free on the internet, such as freeware like Adobe Acrobat Reader, where in a veiled form one enters into a subscription for 3, 6 or even up to 24 months with costs up to EUR 192.00.

In the decided case, the cost obligation of the offer was concealed in such a way that only after accessing the General Terms and Conditions (GTC), following several references within these conditions and reading a lengthy text, one could recognize that one would be entering into a subscription.

Since the website was designed in a way that a potential user would not get the idea that they were facing a paid offer, and therefore had no reason to examine the GTC more closely, this approach was seen as a planned procedure to deceive visitors to the websites. Thus, it was considered a fraudulent deceptive act in the sense of § 263 StGB (German Criminal Code).

Occasionally, other courts have already followed this argumentation. This would be an effective step to prevent this “business model”.

The Button Solution

For some time now, there has been the so-called button solution as a supporting measure. This invention of the legislator states that immediately before sending the order or before confirming the conclusion of the contract by the internet user, they must be informed that by activating the button, they are placing a paid order. The button must indicate the cost obligation. If the notice is not provided in a clear and unambiguous manner on the button itself, no contract is formed. The deceived internet user can then argue that they did not know – and did not need to know – that a contract would be concluded and that due to the lack of notice, by law, no contract exists at all.

One cannot really claim that the legislative solutions have proven effective. Therefore, in such cases, you regularly need legal advice. This can save a lot of money and nerves.

You can find more information here.