The operation of so-called "subscription traps" on the internet - i.e. sites where the charge for services is deliberately concealed - is illegal under competition law. This includes violations of the Price Indication Ordinance or misleading practices. However, the operation of such sites can also have criminal consequences for the operator. This was decided by the Federal Court of Justice in the case of a route planner (judgment of 05.03.2014 - 2 StR 616/12).
In this particular case, the managing director of a company was convicted of attempted commercial fraud. The company had offered a route planner on several websites. The pages were designed in such a way that, in addition to the route planner, the focus was on competitions. Users were asked to provide personal data and accept the company's terms and conditions. In these terms and conditions and in the "small print" on the page itself, it was pointed out that requesting a route led to the conclusion of a three-month subscription at a price of 59.95 euros. Corresponding invoices were only sent out after the objection period had expired.
The BGH considered this to be a deliberate deception of users because route planners are regularly available free of charge on the internet. The price information on the page was also deliberately placed in such a way that it would not normally be noticed - and should not be noticed. The fact that the price information was placed in an anti-competitive manner had previously been clarified in several civil proceedings, also up to the BGH.
The users also suffered financial loss because the opportunity to use an otherwise free and non-tradable route planner for three months was practically worthless for them. The payment of 59.95 euros was therefore not offset by any adequate consideration.
The managing director was also aware of all of this. This applied regardless of the fact that he had obtained an expert opinion certifying the legality of the site. This was because - and this was decisive for the judges - the managing director had subsequently taken a number of inexplicable measures (relocation of the company, appointment of a 21-year-old au pair without sufficient knowledge of German as managing director) that clearly indicated an awareness of the legal uncertainty.
Moreover, it is generally true that, as long as there are no supreme court decisions, the exploitation of alleged loopholes in criminal liability always entails the risk of becoming liable to prosecution if the criminal law situation is misinterpreted. This should be seen as at least a conditional understanding of injustice.
The BGH also states that, in its opinion, a completed fraud could also have been considered in this case, even if the taking of evidence before the Regional Court by questioning only three of the 261 complainants had not shown beyond doubt that they had actually been deceived. The BGH refers here to its case law, according to which deception may be assumed even without such a finding in individual cases in view of the mass use. Ultimately, the BGH upholds the sentence of two years' probation.
The ruling clearly shows that and what risks exist when supposedly clever business ideas are implemented by exploiting equally supposed legal loopholes. Such business ideas can not only lead to a financial burden for the company and its management, but may also result in criminal prosecution.
