Internet providers are not permitted to advertise with a free registration if the promised service is ultimately only offered for a fee. This was decided by the Regional Court of Cologne.
An online flirting portal 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 be able to make contacts by sending and receiving messages to other users, it was necessary to take out a paid subscription. If the trial subscription was not canceled in time, it was automatically extended by at least six months - at a hefty price of almost EUR 470.
The Federal Association of Consumer Organizations had criticized 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 could be used free of charge. This is because flirting and chatting - which is primarily about exchanging messages - is linked to a paid membership. However, the legal requirement of a clear and comprehensible explanation of the content of the contract and the costs were not given. This was particularly true as the cancellation policy was only included after the payment button.
Decision of the court
With Judgment of 19.08.2014 - Ref.: 33 O 245/13 the Regional Court of Cologne granted the injunction and ruled that an internet provider may not advertise a free subscription if it only offers the promised service for a fee. According to the court, such concealment of the subscription conditions is to be classified as misleading advertising.
The judges followed the reasoning of the Federal Association of Consumer Advice Centers and saw the establishment of contact with other people as a basic prerequisite for chatting, flirting and dating in the Flirtcafé. It was therefore a violation of the ban on unfair commercial practices.
The court also criticized the fact that an explicit distinction between free and fee-based services is only made in the terms and conditions and FAQs. On the page where the consumer is faced with the decision to register, such a distinction is not apparent.
The judges also saw a breach of the legal requirements with regard to the automatic extension of the trial membership, as in this case the consumer was not clearly and comprehensibly informed of the costs and duration of the contract.
Conclusion
Even if an appeal has been lodged against the judgment of the Cologne Regional Court and it is therefore not legally binding, care should always be taken to ensure that an eye-catching statement is not incorrect or even misleading.
However, in any case, if the eye-catcher has a misleading effect, this should be excluded by a clear and unambiguous addition to the eye-catcher.
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