Facebook is not permitted to offer 'Find Friends'

'Are your friends already on Facebook?' With this question Facebook advertised to registered users and requested access to their email address books. The Federal Court of Justice (BGH) was now required to decide whether the invitation emails subsequently sent to non-registered persons constitute unfair competition.

The Federation of German Consumer Organisations (vzbv) brought proceedings against Facebook. The vzbv sees in the dispatch of invitation emails to non-members a form of harassment constituting advertising within the meaning of the UWG.

The Regional Court (LG) Berlin already decided in 2012 that the procedure constituted impermissible advertising. The Higher Regional Court (KG) Berlin rejected Facebook's appeal in 2014 (we reported on this).

Court decision on the 'Find Friends' function

The Federal Court of Justice (BGH) upheld the consumer protection advocates with Urteil vom 14.01.2016 – Az. I ZR 65/14 and thereby confirmed the assessment of the lower courts.

In the view of the Federal Court of Justice (BGH), the invitation emails sent by Facebook using the 'Find Friends' function to recipients who have not expressly consented to receive the emails constitute unreasonable harassment within the meaning of the UWG.

The invitation emails are to be regarded as advertising by Facebook, even though their dispatch is triggered by a member of the internet platform. The function is provided by Facebook and is intended to draw the attention of third parties to Facebook's offering. The recipient of such an invitation email would not understand the email as a private message from the Facebook user, but as advertising by the internet platform.

Conclusion

Facebook is unsuccessful in this proceeding at all three instances. It is clear that the company violated competition law for many years and now has less scope to recruit new users.