The Federal Court of Justice has passed a judgment that could well have the potential to cause headaches for many online retailers and providers of online services.
This is the question of whether sending an invoice for a fake order, i.e. when someone places an order, but for example informs an incorrect postal address/e-mail address. If the provider does not check the order correctly in this case and sends an invoice/payment request to a person who has not actually requested this service, the provider commits a warningable infringement of competition law .
According to the Bundesgerichtshof, the invitation to pay for unordered services constitutes a misleading commercial act within the meaning of Paragraph 5(5) of the Federal Court of Justice. 1 sentence 2 case 1 UWG if the consumer in the defendant referred to the invitation takes away the claim that he has ordered the service. It is hard to imagine how this might not be the case.
What is particularly problematic is that the Federal Court of Justice expressly abandons its previous case law on identity theft. The judges now consider that there is an unfairness under Paragraph 5(5) of the 1 sentence 1 UWG does not preclude the trader from acting in the erroneous acceptance of an order actually available to him when requesting payment. Thus, even if, for example, the online retailer is not to blame for the fake order, he is acting illegally by sending a payment request. Whether the provider has made an error is therefore irrelevant in the future. This is extremely far-reaching.
According to the BGH, the invitation to pay for services not ordered but provided falls within point 29 of the Annex to Paragraph 3(3) of the 3 UWG if the trader erupts from an order in error and the error is not the cause of the entrepreneur’s responsibility.
The EU Unfair Commercial Practices Directive does not change that either.
From Art. c directive 2005/29/EC, which presupposes the deliberate action of the trader, cannot meet any requirement for knowledge
derived from a missing order. This fact concerns certain conduct of the trader,
which may suggest aggressive business practice, such as the deliberate exploitation of specific accident situations; it cannot be insinuated that, in the case of aggressive business practices, there is always a subjective
element must be given.
No matter how large the standard of care of the provider is, it is still liable. Ordering operations and verifications should therefore be urgently reviewed and optimized to reduce the risk. Security queries must also be optimised and data protection issues must be taken into account!
