“Are your friends already on Facebook?” violates competition law

Facebook has changed its practice and allows new users to decide to whom invitations are sent. In its January 14, 2016 judgment (Case: I ZR 65/14 Az - Finding Friends), the German Federal Court of Justice nevertheless makes fundamental statements: Invitation emails sent with the previous Facebook “Finding Friends” function to persons who are not yet Facebook members are inadmissible as harassing advertising under competition law. In the registration process for the “Finding Friends” function (November 2010), Facebook has misled users as to the nature and extent of the use of imported contact data. The Federation of German Consumer Organization successfully filed for an injunction, which was confirmed by all lower courts, and now by the Federal Court of Justice.

Invitation emails from Facebook to recipients who have not expressly consented to the receipt of this type of emails are to be considered unacceptable harassment (Section 7(2)(3) German Unfair Competition Act). The Federal Court of Justice classifies such invitation emails as advertising, even if caused by the registering users. This concerned a function made available by Facebook serving to make third parties aware of the Facebook offering. The invitation emails were not understood by recipients as a private message from the Facebook user, but as advertising from Facebook. The company had misled users when registering for the “Finding Friends” function with the details provided by Facebook regarding the nature and extent of email contact data use (Section 5 Unfair Competition Act). The reference in the registration process, “Are your friends already on Facebook?” failed to clarify what would happen next: Email contact data imported by the user were evaluated and invitation emails sent persons not registered on “Facebook”. Additional information given under the link “Your password will not be saved by Facebook” is incapable of overriding the deception, because it is not ensured that users will take notice thereof.

Practical tip:

The decision concerns not only Facebook, but all online services with a function to refer them to friends. Future development will be interesting. including the assessment of the current practices of Facebook in the light of this decision.