Subscription trap

from Wikipedia, the free encyclopedia

Subscription trap (also Internet cost trap or Internet cost trap ) is colloquially a widespread dubious business practice on the Internet in which consumers unintentionally take out a paid subscription . These are Internet offers that are so cleverly designed that the cost obligation for consumers is not readily apparent. Sometimes the pages of reputable providers are also imitated.

Basically, it is the responsibility of the consumer to check websites critically, especially if personal data is requested there - apparently for no reason. Most, but not all, internet cost traps have in common that consumers must register with their name and address; only then does the trap snap shut. With some offers, entering an email address in a registration form should lead to the conclusion of a contract. In the case of actually free offers on the Internet, be it recipes or free software, the name or address of the consumer is generally not required. Particular attention should be paid to internet advertising. Offers in search engines that are highlighted in color or are declared as "adverts" are advertising and not actual research results.

numbers

Internet subscription traps are a widespread phenomenon in Germany. According to estimates by the consumer advice centers, 20,000 users fall into such subscription traps every month.

According to an infas survey from August 2011, between 2009 and 2011 alone, around 5.4 million Germans fell victim to a subscription trap on the Internet.

According to a study by the consumer advice center Schleswig-Holstein, 22.32% of the 12 to 21 year old schoolchildren in the state have already received at least one subscription trap invoice, in 39.75% of the cases the provider hired a debt collection company or a lawyer.

According to the study, the economic damage is immense: the average claim amount is around 100 euros. 3.8% of students have already paid such a claim; Extrapolated to the number of schoolchildren in the whole of Germany, the damage would therefore be 36,706,043 euros. But not only schoolchildren are affected, according to a survey by the consumer center Hessen e. V .: 10.2% of German citizens who have received a subscription trap invoice have paid it.

It is a profitable business for providers. The District Court of Munich I found that the account of a lawyer who became known in connection with subscription traps received payments of over 2.2 million euros in six months, spread over 25,000 individual transfers. In another case, the account of a company that operated two websites with subscription traps was blocked at the request of the Düsseldorf public prosecutor. This account last held 670,000 euros, with up to 50,000 euros in some cases within three days.

Methods

overview

In many cases, typing errors when entering an Internet address, clicking on advertising links in search engines that are not recognizable as advertising and redirects to streaming sites with questionable copyright lead to cost traps. The business idea is to make a collection of information available on the corresponding website for a fee. It is misleading for consumers that comparable information is otherwise available free of charge on the Internet.

The service offers are z. B. to

  • Homework help,
  • Career choice support,
  • Tests (intelligence, product comparison, driver's license),
  • Genealogy,
  • Life expectancy calculator,
  • Route planner,
  • Online games.
  • Entry into a cost trap can also be participation in competitions and swap exchanges as well as ordering trial subscriptions.

The goods offered are often

  • Cooking recipes,
  • E-cards ,
  • "Free" SMS,
  • Music files,
  • Films and software,
  • In-app purchases or app billing.

Registration

If the consumer would like to use the services or goods offered, he is asked to register on the website and enter his personal data. The provider needs the personal data in order to have a billing address to which he can send his claims; the bank details are rarely requested directly.

Often the specification of personal data is justified by the fact that they are necessary for receiving the offer, e.g. B. for sending the prize, for the exact calculation of the life expectancy of the user or for researching his parentage. In other cases, the entry of personal data is allegedly required for reasons of trust and security. Subscription trappers often use similar or slightly different methods to get consumers to register; however, new traps are regularly to be discovered.

price quotation

Example of hidden price information in the general terms and conditions of a subscription trap.

In Germany there is freedom of contract. It is therefore basically not forbidden to offer information that is usually available free of charge for a fee. However, the prerequisite is that all regulations - including the clear reference to a price - have been complied with. In the case of internet cost traps, on the other hand, the registration window is almost always designed in such a way that the price information is not clear or that the consumer is distracted from them. As a result, he does not expect to conclude a subscription with the registration, usually a two-year long - term obligation.

Instead of digits, the price information and the currency information are usually written out so that they are not noticeable in the running text (e.g. eight euros). In many cases, the prices can also be found at the bottom of the page below the registration button. When the page is called up, only the login window with the button appears on a standard screen, the price information is only visible to the user when he scrolls to the bottom of the page. In other cases, the price is indicated at the top of the page or on the edge of the page, while the registration form in the middle of the page is intended to attract all of the user's attention.

If the price is hidden on a website in this way, from a legal point of view, no contract is in principle concluded because the two parties have not agreed on the remuneration of the offer. Due to the design of the website, the user could rather assume that the offer was free of charge; when he clicked the confirmation button, he was not sure that he should conclude a paid contract.

In addition, the providers do not meet the requirements of the Price Indication Ordinance in these cases . According to this, the price information must comply with the principles of price clarity and price truth, i.e. H. the price must be clearly assigned to the respective offer, it must be easy to recognize and clearly legible or clearly perceptible. By concealing the fact that this is a paid offer, the website operators are also violating the prohibition of misleading advertising.

In other cases, the costs of the offer are only referred to in the general terms and conditions (GTC), and there rarely in the first place, but after further clauses and information. This procedure is unusual, surprising for the consumer and therefore not lawful according to § 305c I BGB. Therefore, in this case, no paid contract is concluded.

Example of waiving the right of withdrawal in the event of a subscription trap.

Right of withdrawal

Sometimes when registering, the consumer is asked to click to confirm that he waives his right of withdrawal. Such a waiver is ineffective, however, since the statutory provisions on the right of withdrawal may not be deviated from to the detriment of the consumer.

The regular withdrawal period is two weeks. The period only begins after the consumer has received clearly structured instructions about his right of withdrawal in text form. If this instruction was only given after the conclusion of the contract, the period is extended to one month. However, if the right of withdrawal was wrongly or not at all instructed, the period does not begin to run and does not expire.

Before the regular right of cancellation expires, the right of cancellation only expires if both parties have fully fulfilled their part of the contract, i.e. H. the consumer has paid the entire cost and the provider has provided the service in full.

Nevertheless, the providers often claim that the right of withdrawal has expired. The reason for this is still often given that this is a consequence of the one-time use through login. In any case, this has not been the case since August 2009, when a change in the law (Section 312d Paragraph 3 BGB) came into force.

Providers often advertise with a free trial subscription that converts to a paid subscription after the test phase has expired.

imprint

Every operator of commercial Internet sites in Germany is obliged to state the name and legal form of the company with the postal address and the first and last name of the legal representative in the imprint . It is not sufficient to state the post office box, as this is not an address for summons .

Furthermore, when entering in a public register, the location of the register and the registration number must be given. The tax number does not have to be included in the imprint, only the sales tax identification number , if the company has one.

Often, the providers of a subscription trap provide no or insufficient information at all or the company is based abroad. It is not uncommon for these to be so-called letterbox companies that do not have a functioning business process. In addition, the providers often use the legal form of the private company (Ltd.) , since this form of company can be founded with one British pound and thus the customers do not have any liability.

Yellow Pages

There are some companies that write to traders and the self-employed with so-called "listing offers" for business directories. Here, too, most addressees only realize afterwards that they have signed a two-year contract, for which the operator usually charges sums of around € 1,200. The operator then exerts a great deal of pressure on the addressees through debt collection agencies. The chances of success against such black sheep are very good. Those affected can not only get rid of the claims, but also get back amounts already paid. The so-called (double) call mesh, in which the caller specifies an existing business relationship and tries to get the called party to several JAs, then records the conversation and thus constructs a contract, is currently very popular.

Monetary claim

invoice

A few weeks after registration, the provider usually sends the first invoice to the consumer. As a popular means of pressure, the site owners accuse the consumer of having to recognize himself that it is a fee-based offer, and that the mistake is his.

Even if an effective contract has been concluded with the provider, which is rarely the case (see above), the consumer can initially revoke the conclusion of the contract within two weeks of fulfilling the information obligations (see above). According to § 312d III BGB, new version, it only expires prematurely in the context of services if both parties have fully fulfilled the contract, i.e. H. the consumer must have received the service in full and paid for it.

In addition, the consumer can also withdraw from the contract by challenging the content or fraudulent misrepresentation . The consumer advice centers and lawyers give legal advice here. Sample letters are also available on the website of the Federal Ministry of Food, Agriculture and Consumer Protection. The Federal Ministry of Justice also provides information.

Supposed contracts

Sometimes consumers also receive bills even though they have never been to the relevant website and consequently have not logged in anywhere. The cause can be that a third party, who is aware of the consumer's data, has registered on his behalf. These are imposed contracts in which consumers are generally not obliged to respond to invoices. Because the company bears the burden of proof for the existence of the payment obligation.

Debit from the mobile phone bill

Some cost trap operators also ask for the mobile phone number when registering. In this way, an attempt is made to simply collect the money claim with the next mobile phone bill. Here the consumer must object to the direct debit and make a repayment stipulation about which part of the invoice he objects and which part he pays and which not.

Threatening backdrop

SCHUFA entry

If the consumer does not pay the invoice sent, reminders usually follow. These are u. a. from debt collection agencies and lawyers. In the dunning letters themselves or in the further course of the process, the providers sometimes threaten negative Schufa entries as well as obtaining a dunning notice.

The threat of a negative Schufa entry is inadmissible, however, if the consumer denies his obligation to pay for valid reasons. This behavior can also be prohibited by a court of law. In addition, the first civil courts have now ruled that the warning lawyers aid in the attempted fraud of the provider.

IP address

Often times, the provider states that they have saved the customer's IP address during registration . However, this cannot provide evidence of an effective conclusion of the contract.

complaint

Threat of criminal charges. Is often used in the B2B area to give further emphasis to a claim

The so-called “Kalletal triangle” or “Viennese sausage pyramid” to illustrate the threatening backdrop is more of a theoretical nature, but intimidating the victims often involves threatening a criminal complaint.

The victim usually receives all of this in an incomprehensible order. After this threat, a settlement offer or a very last extrajudicial reminder can come. Basically, here, too, an attempt to collect an illegitimate claim out of court, which almost every court rejects.

Minors

Especially in cases in which minors have given incorrect age information when registering, the providers often threaten to file a criminal complaint for fraud.

A criminal liability for fraud is ruled out, however, since the minor regularly assumed that he would use a free service in a subscription trap and he did not want to cheat the provider of his claim. He therefore lacks the intent to enrich himself required for Section 263 of the Criminal Code.

There is also no falsification of evidence-relevant data by incorrectly specifying the age of the minor. The relevant offense according to § 269 I StGB is only fulfilled if a false identity is faked. However, this is not yet the case if the age is incorrect. It is just a written lie that is not covered by Section 269 I StGB.

When minors are involved, the legal position of the provider is particularly weak: If the minor is under 7 years of age, he is deemed to be incapable of doing business (cf. § 104 BGB), which is why no effective contract can be concluded (cf. § 105 BGB). In the case of minors between 7 and 17 years of age, the transaction is at least temporarily ineffective (cf. § 108 BGB), since the conclusion of a subscription contract would be associated with legal disadvantages for them (see § 107 BGB); the contract is pending ineffective. This means that if the parents refuse to approve the conclusion of the contract, the deal will become permanently ineffective.

Example of a typical dunning letter

Parents whose underage child has allegedly taken out a subscription should not rush to pay the claim. Otherwise one confirms the voluntary conclusion of this subscription. It is better to go on the offensive and counter the operators with their wrongdoing by means of a letter.

The providers often threaten the parents of minors who have fallen for a subscription trap to assert claims for damages against them because they have violated their duty of supervision . As a rule, the parents are not liable according to Section 832 of the German Civil Code (BGB) because the child does not commit any illegal act by registering with the provider. Whether it is also a case of breach of duty of supervision can only be assessed on the basis of the circumstances of the individual case.

Payment order

In rare cases, the victims are also sent a court order for payment. When issuing a payment order, the local court does not check whether the alleged claim actually exists. In this case, the consumer concerned must object to the order for payment within two weeks to the court.

Combating cost traps

Competition law penalties

The associations authorized to take legal action under the Injunctive Action Act, in particular the Federal Consumer Association and the Competitions Center, act actively and successfully against providers using the instruments of warning, the request to submit a declaration of cease and desist and the injunction. An overview of the warnings and lawsuits against Internet cost trap operators issued by the Federation of German Consumer Organizations is published on the Internet.

Federal Government Legislation

The federal government has agreed to demand the anchoring of a “ button solution ” against Internet cost traps in the context of negotiations for a directive on consumer rights . The “button solution” is an important element in combating cleverly designed Internet sites on which consumers are lured into the cost trap.

The "button solution" is intended to clearly show the consumer the obligation to pay before submitting a binding contract declaration. In addition, the entrepreneur should design his website in such a way that a binding order is only possible after the consumer has confirmed that he has taken note of the reference to the obligation to pay.

As of August 1, 2012, the button solution came into force through an amendment to Section 312 g of the German Civil Code.

But this button solution is quite easily circumvented by subscription trap operators by allegedly offering their services to traders who then, treated according to the HGB, cannot make use of any right of withdrawal. The BGH had decided (judgment of June 26, 2012 - VII ZR 262/11): Excerpt from the judgment:

"If a service (...) is offered free of charge in a large number of cases, a remuneration clause, which, according to the printing design of the application form, is inserted so inconspicuously into the overall picture that the contractual partner of the clause user does not suspect it there, in accordance with § 305c Paragraph 1 BGB not part of the contract. The remuneration agreement was inserted between other information so that it could easily be overlooked and the addressee did not have to expect it. The addressee's attention is primarily drawn to filling in the text ... The average businessman could not be expected to read the framed text carefully. "

This is to be seen as a milestone in the fight against the " useless industry ".

List of known subscription traps

The consumer center Hamburg provides a list of well-known subscription trap websites on its website, where you can find out about suspicious websites.

Browser plug-in "cost finder"

The computer program “Cost Finder” offered free of charge by the Federal Ministry of Consumer Protection draws attention to hidden price information on the Internet. "Cost Finder" marks hidden costs in yellow and red on the currently opened website after a click and also shows how often certain terms that indicate price information appear on a website that is called up. This provides information on the existence of possible hidden costs. However, the program does not offer a guarantee that cost traps will be recognized.

“Cost Finder” is available for the five popular web browsers Mozilla Firefox , Internet Explorer , Google Chrome , Opera and Apple Safari .

Online game "Caution Trap"

With the online game "Caution Trap" made available by the Federal Ministry of Consumers, consumers are supposed to learn in a playful way to recognize internet cost traps. In addition to training how to recognize cost traps, it is also the aim of the online game to develop awareness of problems when providing personal data.

For this purpose, fictitious, typical offers from the Internet are presented in the online game. By clicking on the relevant areas, the player must show that he has found the indications that this page is dubious. Indications for this are hidden prices, unnecessary requests for personal data and other things. After each game page, the characteristics and consequences of the found and not found clues are explained.

The result of the game can then be announced on social networks.

literature

Web links

Contact points

Individual evidence

  1. Oliver Meyer-van Raay, Jörg Deitermann: Caught in the (Internet) cost trap? In: Consumers and Law. Volume 9, 2009, p. 335 ff.
  2. Press release of the infas Institute for Applied Social Science GmbH ( Memento of August 3, 2012 in the Internet Archive ) (PDF; 495 kB) August 2011.
  3. a b Statistical recording of the Internet behavior of young people and adolescents - A study by the consumer advice center Schleswig-Holstein. ( Memento of July 5, 2010 in the Internet Archive ) (PDF; 1.9 MB) March 2010
  4. Statistical recording of the Internet behavior of young people and adolescents - a study by the consumer advice center Schleswig-Holstein. (PDF; 1.9 MB) March 2010; Another survey by the consumer advice centers ( Memento from February 12, 2013 in the web archive archive.today ) even came to an average of 120 euros.
  5. Survey campaign "Rip off on the Internet", consumer center Hessen e. V., September / October 2007 ( Memento from July 5, 2011 in the Internet Archive )
  6. ^ Regional Court Munich I, judgment of May 12, 2009, Az .: 28 O 398/09.  ( Page no longer available , search in web archives )@1@ 2Template: Dead Link / www.dury.de
  7. Fabriken.de: 670,000 euros frozen, 2,000 advertisement articles from April 9, 2009.
  8. Oliver Meyer-van Raay, Jörg Deitermann: Caught in the (Internet) cost trap? In: Consumers and Law. Volume 9, 2009, p. 335 f .;
    Benedikt Klas, Philipp Schwarz: New ways in the fight against cost traps on the Internet. In: Consumers and Law. Volume 9, 2009, p. 341.
  9. Overview of the Federal Association of Consumer Organizations on the Internet cost traps. (PDF; 265 kB) Status: June 25, 2010; Information from the Bavarian Consumer Center ( Memento from February 12, 2013 in the web archive archive.today ) ; Leaflet subscription trap of the eCommerce liaison office Germany ( Memento from February 15, 2010 in the Internet Archive ) (PDF; 122 kB) ; Benedikt Klas / Philipp Schwarz: New ways in the fight against cost traps on the Internet . In: Consumers and Law. Volume 9, 2009, p. 341.
  10. Explanation of in-app purchases / app billing . Mobile phone sector - the information portal on media for young people. Retrieved March 19, 2014.
  11. Overview of the Bavarian Consumer Center ( Memento from February 12, 2013 in the web archive archive.today );
    Oliver Meyer-van Raay, Jörg Deitermann: Caught in the (Internet) cost trap? In: Consumers and Law. Volume 9, 2009, p. 335.
  12. a b c d e f g h i Benedikt Klas, Philipp Schwarz: New ways in the fight against cost traps on the Internet. In: Consumers and Law. Volume 9, 2009, p. 341 f.
  13. Oliver Meyer-van Raay, Jörg Deitermann: Caught in the (Internet) cost trap? In: Consumers and Law. Volume 9, 2009, p. 335.
  14. ^ Munich Local Court, judgment of May 27, 2005, Az. 163 C 13423/05; similar to the Karlsruhe District Court, judgment of August 12, 2009, Az. 9 C 93/09
  15. ^ Munich Local Court, judgment of May 27, 2005, Az. 163 C 13423/05; similar to Karlsruhe District Court, judgment of August 12, 2009, Az. 9 C 93/09 ;
    Oliver Meyer-van Raay, Jörg Deitermann: Caught in the (Internet) cost trap? In: Consumers and Law. Volume 9, 2009, p. 335 ff.
  16. § 1 VI p. 1f. PAngV ;
    Higher Regional Court Frankfurt aM, judgment of December 4, 2008, Az. 6 U 187/07 (PDF; 123 kB);
    KG Berlin, judgment of November 28, 2007, 96 O 175/07 (PDF; 403 kB);
    Regional Court of Stuttgart, judgment of May 15, 2007, Az. 17 O 490/06 ;
    Oliver Meyer-van Raay, Jörg Deitermann: Caught in the (Internet) cost trap? In: Consumers and Law. Volume 9, 2009, p. 335 f;
    Benedikt Klas, Philipp Schwarz: New ways in the fight against cost traps on the Internet. In: Consumers and Law. Volume 9, 2009, p. 341 f.
  17. § 3 UWG ;
    § 5 UWG ;
    Higher Regional Court Frankfurt aM, judgment of December 4, 2008, Az. 6 U 187/07 (PDF; 123 kB);
    Regional court Stuttgart, judgment of May 15, 2007, Az. 17 O 490/06.
  18. § 305c I BGB
  19. Munich District Court, judgment of January 16, 2007, Az. 161 C 23695/06 (PDF; 50 kB) ; Hamm District Court, judgment of March 26, 2008, Az. 17 C 62/08 (PDF; 52 kB) ; Oliver Meyer-van Raay, Jörg Deitermann: Caught in the (Internet) cost trap? In: Consumers and Law. Volume 9, 2009, p. 335 ff.
  20. ^ Munich Local Court, judgment of January 16, 2007, Az. 161 C 23695/06. (PDF; 50 kB).
  21. ^ District Court Mannheim, judgment of May 12, 2009, Az. 2 O 268/08 (PDF; 89 kB) ; Otto Palandt: Bürgerliches Gesetzbuch , 69th edition, 2010, § 355 BGB Rn 2.
  22. a b § 312d III BGB new version.
  23. a b Information from the Bavarian Consumer Center ( Memento from February 12, 2013 in the web archive archive.today )
  24. Action against business directory fraud
  25. Abo-Maschen - Abofalle-Anwalt.de . In: Abofalle-Anwalt.de . ( abofalle-anwalt.de [accessed on September 28, 2018]).
  26. Oliver Meyer-van Raay, Jörg Deitermann: Caught in the (Internet) cost trap? In: Consumers and Law. Volume 9, 2009, p. 335.
  27. Oliver Meyer-van Raay, Jörg Deitermann: Caught in the (Internet) cost trap? In: Consumers and Law. Volume 9, 2009, p. 335 ff.
  28. Explanations on § 312d III BGB old version and on the new regulation in: Oliver Meyer-van Raay, Jörg Deitermann: Caught in the (Internet) cost trap? In: Consumers and Law. Volume 9, 2009, p. 335 ff.
  29. § 119 I 1 1st alternative of the BGB
  30. § 123 BGB
  31. Leaflet subscription trap of the eCommerce liaison office Germany ( Memento from February 15, 2010 in the Internet Archive ) (PDF; 122 kB) ; Possibility of contestation due to fraudulent deception affirming: Higher Regional Court Frankfurt aM, judgment of December 4, 2008, Az. Az. 6 U 187/07 (PDF; 123 kB).
  32. Sample letters from the Federal Ministry of Food, Agriculture and Consumer Protection ( Memento from August 17, 2011 in the Internet Archive )
  33. Information from the Federal Ministry of Justice on the subject of cost traps on the Internet. In: BMJV. Retrieved April 26, 2020 .
  34. Information from the Federal Ministry of Food, Agriculture and Consumer Protection on the subject of subscription costs via the mobile phone bill ( Memento from August 18, 2011 in the Internet Archive )
  35. Oliver Meyer-van Raay / Jörg Deitermann: Caught in the (Internet) cost trap ?. In: Consumers and Law. Volume 9, 2009, p. 335 f.
  36. § 1004 I sentence 2 BGB analogously in connection with § 823 I BGB in connection with Art. 1 I and Art. 2 I GG .
  37. Leipzig District Court, judgment of February 3, 2010, Az. 118 C 10105/09 (PDF; 54 kB) ; District Court Plön, judgment of December 10, 2007, Az. 2 C 650/07 (PDF; 54 kB) ; Halle District Court, judgment of December 9, 2009, Az. 105 C 4636/09 ( Memento of May 10, 2015 in the web archive archive.today )
  38. cf. § 263 I, II StGB , § 22 StGB , § 23 StGB
  39. Marburg District Court, judgment of February 8, 2010, Az. 9 C 93/09 (PDF; 343 kB) ; Karlsruhe District Court, judgment of August 12, 2009, Az. 2 C 650/07
  40. a b c d Leaflet subscription trap of the eCommerce liaison office Germany ( Memento from February 15, 2010 in the Internet Archive ) (PDF; 122 kB)
  41. Kalletaler Dreieck or Wiener Würstelpyramid ( Memento from December 23, 2012 in the Internet Archive ) - a satirical illustration of the threatening backdrop of the useless industry
  42. § 263 StGB , § 269 StGB , § 23 StGB
  43. Section 263 of the Criminal Code
  44. a b § 269 I StGB
  45. a b Herbert Tröndle / Thomas Fischer: Criminal Code and subsidiary laws . 53rd edition, 2010, § 269 StGB marginal number 5a
  46. § 104 BGB
  47. § 105 BGB
  48. § 108 BGB
  49. § 107 BGB
  50. Lucia Walter: Subscription trap sample letter for minors. In: aboalarm.de. September 3, 2013, accessed November 17, 2015 .
  51. It would be necessary that the child fulfills the criteria of § 823 I BGB or § 823 II BGB . However, neither is the case. On the one hand, the provider's assets do not represent any other right within the meaning of § 823 I BGB and, on the other hand, as already stated, there is no necessary fraudulent intent; see. also information sheet subscription trap of the eCommerce liaison office Germany ( Memento from February 15, 2010 in the Internet Archive ) (PDF; 122 kB).
  52. Overview of the procedures of the Federation of German Consumer Organizations on cost traps on the Internet (PDF; 265 kB)
  53. Amendment of § 312 g BGB by Article 1 of G. v. May 10, 2012 (BGBl. I p. 1084)
  54. BGH judgment of June 26, 2012 (VII ZR 262/11) (PDF; 120 kB) on the disclosure of the obligation to pay for services that are usually free of charge
  55. List of known subscription trap websites (PDF; 1.6 MB)
  56. ZDNET.de to the subscription trap list, accessed on July 7, 2012
  57. bmelv.de
  58. bmelv.de  ( page no longer available , search in web archives )@1@ 2Template: Toter Link / www.bmelv.de
  59. bmelv.de  ( page no longer available , search in web archives )@1@ 2Template: Toter Link / www.bmelv.de