Directory listing scams – offer forms ruled misleading by BGH

An increasing number of young self-employed persons and business operators are falling for unscrupulous offers for entries in business directory listings. Because the indication of fees is deliberately hidden in the 'small print', the affected parties only notice when the invoice arrives that the advertising letters or proof copies are actually chargeable offers.

Providers such as 'Gelbes Branchenbuch' or 'Gewerbeauskunft-Zentrale' generally proceed according to a comparable pattern. The affected parties receive a form that in some cases appears official and which at first glance creates the impression that it is a proof copy for an already existing directory entry. They are asked to supplement their business data and return the form free of charge. The indication that signing the form will establish a chargeable 2-year contract is deliberately designed to be inconspicuous. Upon receipt of the invoice, the affected parties are surprised and are simply unable to understand the usually inflated costs. If the invoice is ignored, numerous reminders and dunning letters from collection agencies follow. Court dunning proceedings are also not excluded.

On the legal position

The Federal Court of Justice (BGH) has already decided that the procedure of the respective directory listing providers is misleading in its judgment of 30.06.2011 (I ZR 157/10). Furthermore, a fee clause that is inserted into the overall presentation so inconspicuously according to the design of the application form that it is not suspected there constitutes a surprising clause that does not become part of the contract. The BGH has also decided this in its judgment of 26.07.2012 (VII ZR 262/11) .

The judgment of the Local Court (AG) Düsseldorf from 13.10.2011 (40 C 8543/11), which is regularly cited by Gewerbeauskunft-Zentrale, has meanwhile been superseded following a more recent judgment by the Local Court (AG) Düsseldorf from 09.08.2012 (50 C 5266/12) establishing that Gewerbeauskunft-Zentrale in fact has no rights or payment claims after the defendant had effectively challenged the conclusion of the contract on grounds of fraudulent misrepresentation.

Furthermore, the Regional Court (LG) Düsseldorf prohibited Gewerbeauskunft-Zentrale by way of an preliminary injunction of 21.12.2012 (38 O 37/12) from sending such forms and from demanding payments from the addressee on the basis of a signature provided thereon. The sending of the form letter itself constitutes a misleading commercial practice. The same applies to attempts to move customers obtained in this manner to pay through invoice submissions, reminders, collection agency letters and lawyer's letters.

Conclusion

Overall, it is therefore already questionable whether in comparable cases one should assume an effective conclusion of contract. Depending on the design of the respective offer forms, challenge on grounds of fraudulent misrepresentation is generally possible, whereby the contract is void from the outset. The contract challenge must be made within a period of one year, which begins with knowledge of the misrepresentation.