Misleading free offer online

Internet service providers are not permitted to advertise a free registration if the promised service is ultimately only offered in return for payment. This has been decided by the Regional Court (LG) Cologne.

An online flirting portal had advertised with the slogan "Register now for free" and gave interested parties the opportunity to create a free profile. However, in order to actually use the flirting portal and to make corresponding contacts by sending and receiving messages to other users, it was then necessary to conclude a paid subscription. If the concluded trial subscription was not cancelled in time, it automatically extended for at least six months – at the proud price of almost EUR 470.

The Federal Association of Consumer Centres criticised the lack of transparency regarding membership costs and sued for an injunction. It argued that it was irrelevant whether other services on the flirting platform were freely usable. For flirting and chatting – which is primarily about the exchange of messages – is tied to a paid membership. In the case of this membership, however, the statutory requirement for clear and understandable disclosure of contract content and costs was not met. This applied in particular because the withdrawal notice was only included after the payment button.

Court decision

With Judgment of 19.08.2014 – Az.: 33 O 245/13 the Regional Court (LG) Cologne upheld the injunction action and decided that an internet service provider may not advertise a free registration if he only offers the promised service for payment. Such concealment of subscription terms is to be classified as misleading advertising, according to the court.

The judges followed the reasoning of the Federal Association of Consumer Centres and regarded contact with other persons as a prerequisite for chatting, flirting and dating in the Flirtcafé. Therefore, there was a breach of the prohibition on unfair commercial practices.

The court furthermore criticised that an explicit distinction between free and paid services is only made in the terms and conditions and FAQ. On the page where the consumer faces the decision to register, such a distinction is not apparent.

With regard to the automatic renewal of the trial membership, the judges likewise saw a breach of statutory requirements, since in the present case the consumer was not clearly and unambiguously informed of what costs and what term were associated with the contract.

Conclusion

Even if an appeal was filed against the judgment of the LG Cologne and it is therefore not final, care should always be taken to ensure that a statement highlighted as an eye-catcher is not incorrect or even merely ambiguous.
In any event, however, in the event of a potentially misleading effect of the eye-catcher, this should be excluded by a clear and unambiguous addition that participates in the eye-catcher.