Bundesgerichtshof; 2016-01-14; I ZR 65/14
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2016:140116UIZR65.14.0
Date: 2016-01-14
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE0114(51)_ENG_SUMJURE
JURE summary
JURE summary
The German Federation of Consumer Organisations and Consumer Associations (hereinafter ‘the plaintiff’) brought action for injunctive relief against the operator of the internet platform Facebook, based in Ireland (hereinafter ‘the defendant’).
Upon registering on Facebook, the defendant made available to users an application option called ‘Find Friends’ with which they could initiate a search of their email accounts and import email addresses by entering their email address and email password after clicking the button ‘Find Friends’. If people on the list of email addresses were not already members of Facebook, it was possible to click on a ‘Send invitation’ button. These people then received an email from their friend stating that they had registered on Facebook and were invited to log in to Facebook as well.
The plaintiff is of the opinion that the invitation email constitutes an act of unacceptable nuisance. The defendant did not inform users in an appropriate manner about the use of the ‘Find Friends’ feature and that it misleads users and recipients.
The Landgericht  Berlin (hereinafter ‘the Court of First Instance’), having international jurisdiction under Article 5(3) of the Brussels I Regulation (1), upheld the action and ordered the defendant, while avoiding an administrative fine of up to EUR 250 000, or failing that, other measures, to refrain from sending consumers notifications for registration or, subsequently, reminders of registration, in Germany, if the contacted users had not provided their prior consent to the use of their email address. The defendant should also refrain from allowing the user, during the registration process, to import contact data, in particular email addresses from an existing address database into the Facebook database by using the ‘Find Friends’ feature.
The defendant’s appeal to the Berlin Court of Appeal (hereinafter ‘the Court of Appeal’) was unsuccessful.
The defendant’s appeal to the Bundesgerichtshof (hereinafter ‘the Supreme Court’) is unfounded.
The act constitutes an unsolicited commercial act in the form of unreasonable harassment pursuant to Article 7(2)(3) of the UWG (2) because no prior express consent has been given by the addressee.
Saving contact data when clicking the button ‘Find friends’ leads to an unfair deception pursuant to Article 5 Section 1 sentence 1 and 2 number 1 of the UWG. However, this only concerns the user himself and is not, as the Court of Appeal erred in law, intended to mislead the recipients of the invitation emails.
The Supreme Court dismissed the defendants’ appeal against the judgment of the Court of Appeal.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Gesetz gegen den unlauteren Wettbewerb vom 3. Juli 2004 (Act against Unfair Competition of 3 July 2004).