Costs for internet subscription services must be clearly recognisable

You just wanted to download a free programme on the internet and accidentally concluded a paid annual subscription in the process? Welcome to the club! You are certainly not alone with this problem, as consumers are victimised day in and day out by providers who do not provide sufficient notice of the charges associated with their offers.

The defendant is the operator of a website on which numerous programmes are listed that the respective copyright holders make available free of charge on the internet, such as, in particular, the programme "Adobe Reader". A paid-for access to a database is offered through this website, from which these free programmes can be downloaded.

However, the software download offered on the website can also be accessed via so-called "Adword advertisements" on Google if you search the search engine for the free programme "Adobe Reader", for example. In this case, you bypass the homepage which clearly points to the charges. Via an intermediary page containing general information about the programme, you reach a registration form on the website. There the internet user is requested to provide his personal data and then to click on the red-marked button "Registration & Download". Before that, he must tick a field in which he confirms that he accepts the general terms and conditions (AGB), in which reference is made to the obligation to pay, and that he has been informed about the right to withdraw.

Next to the registration form, there is a notice in grey lettering on a grey-white background:

"Your membership in our download portal will incur costs of 84 € including VAT per year (12 months at € 7 each), charged in advance."

The chargeable nature of the offer is furthermore indicated on a subpage of the registration form.
When the internet user fills out the registration form and activates the "Registration & Download" button, he receives an e-mail with access data and a link as well as a notice on the right to withdraw. When the internet user clicks on this link, he can download the requested programme.

The internet user then receives an invoice for the membership fee in the amount of 84 €.

The plaintiff, the umbrella organisation of all 16 consumer protection centres, demanded that the operator of the website cease to offer consumers on the internet the paid-for use of a database intended for the downloading of software, without, however, clearly indicating the price for registration.

Court Decision
The Regional Court (LG) Hamburg has, in itsjudgment of 08.07.2010 – Az. 327 O 634/09decided that the association has a claim for an injunction against the operator of the website.

The presentation of the offer via the "Adword advertisements" on Google is misleading because the target audience is misled about the chargeable nature of the services. The notice of the costs charged in advance for 12 months of contract duration is not placed in an easily recognisable and clearly legible manner.

The court argues that consumers know from press reports and similar sources that the programmes on the disputed website are free "freeware", which is why they do not assume that they are making a purchasing decision when they download such programmes. In this respect, the situational attention of the average consumer is low. An averagely informed and reasonably perceptive consumer who searches the internet for a download option for a free programme such as Adobe Reader and for this purpose enters the name of the programme he is looking for into the internet search engine Google and then reaches the website of the defendant via an "Adword advertisement" on Google via an intermediary page would not expect that this programme could only be downloaded after establishing a paid membership. Rather, he assumes that it is available to him free of charge – as would be expected with so-called "freeware" in general.

The average consumer is accustomed to encountering numerous free and nonetheless quite useful services and download offers on the internet without knowing or being able to ascertain the reason for the free nature of such offers. As long as the consumer is not making a specific purchasing decision and essentially moves about on the internet for his own entertainment, as long as he in particular does not notice that the perception of information offers could lead to the establishment of payment obligations, he will generally have no reason to make an effort to thoroughly and completely perceive the information visible on the screen. Given this initial situation, the operator of the website is required to provide a clear notice of the chargeable nature of the offer being made by it.
However, such a clear notice is lacking here:
The intermediary page, which leads further to the registration form, contains only information about the respective programme. There are no cost notices there.

Next to the registration form, a notice of the costs is indeed given. However, it is designed in such an inconspicuous manner that at least a substantial proportion of the target audience will not perceive it. The cost notice is found in relatively small lettering, grey on a white background in continuous text on the lower right side of the screen printout, whereas the rest of the text on the registration page is almost without exception highlighted through coloured design and bold type and thus draws the attention of the viewer. The focus on this registration page is directed towards the download of the requested programme and thereby simultaneously diverts attention from the inconspicuously designed cost notice. Given the expectation of the target consumer to now download a single free programme, the notice on the registration page is completely unsuitable to draw the consumer's attention to an offer which represents a paid-for ongoing obligation relationship over a year and the annual fee must be paid in advance.

Likewise, the fact that customers must enter their personal data into the registration form does not constitute a notice of the obligation to pay. There is a multitude of free offers on the internet which – whether for marketing purposes, due to legal obligation, or for other reasons – require the entry of personal data, such as, for example, various e-mail services or network platforms. The average consumer will therefore not be led to the realisation that the offer is chargeable by the requirement to provide personal data.
The confirmation given by the consumer that the AGB are accepted and that information about the right to withdraw has been provided also does not lead to a different result. General terms and conditions may contain numerous regulations that have nothing to do with payment obligations, such as limitations on the liability of the provider or copyright provisions. It is therefore not to be assumed that a noteworthy proportion of the addressees actually read the AGB before accepting them.

There is likewise no reason for the consumer who is searching for a download option for a single programme to click on the subpage of the registration form pointing to the payment obligation. Therefore, a substantial proportion of the target consumers will not become aware of the contents of this subpage at all, but will instead directly make use of the download option.

Conclusion

With this decision, the Regional Court (LG) Hamburg has given a clear rejection to "subscription traps". If the offer does not clearly and distinctly point out the payment obligation to the consumer, this constitutes a violation of competition law. Associations or, for example, competitors then have the opportunity to take legal action against the provider and, as in this case, to demand an injunction.
For the consumer who unintentionally concluded the subscription, the possibility of timely withdrawal must be examined, among other things. Seek legal advice on this.