German Federal Court of Justice: Facebook’s „friend finder“ is unlawful

In its judgment of 14 January 2016 (case No. I ZR 65/14) the German Federal Court of Justice ruled in the dispute between the Federation of German Consumer Organisations (vzbv) and the operator of the internet platform Facebook in favour of vzbv (so far only press release available). According to the German Federal Court of Justice the ‘Friend Finder’ function, which allows Facebook to send invitation e-mails to people who are not yet registered as platform members shall be regarded as harassing advertising and therefore illegal. Moreover, the Court ruled that during the registration process Facebook misled its users in an illegal manner as to the nature and extent of the use of their imported contacts’ data.

vzbv had asserted that invitation e-mails sent through the ‘Friend Finder’ function to people not registered as platform members should be regarded as inadmissible harassing advertisement pursuant to sec. 7 para. 1 and 2 no. 3 of the German Act Against Unfair Competition. vzbv further argued that the ‘Friend Finder’ function deceived Facebook’s users as regards the scope of the use of their e-mail contacts in violation of sec. 5 of the German Act Against Unfair Competition, since Facebook had not informed them that it would also have access to the data of contacts which are not Facebook users.
The Regional Court of Berlin had found in favour of vzbv. Facebook’s appeal before the Berlin Court of Appeal as well as the appeal to the German Federal Court of Justice remained unsuccessful.
The Federal Court of Justice confirmed that invitation e-mails must be regarded as harassing within the meaning of sec. 7 para. 2 no. 3 of the German Act Against Unfair Competition because such e-mails were not private messages but constituted advertisement. Even though their dispatch was triggered by registered users, this was still a function that Facebook made available while e-mails recipients had not expressly consented to such communication.

The Court also concluded that consumers were misled within the meaning of sec. 5 of the German Act Against Unfair Competition as to the nature and extent of the use of their contacts’ data. Even though the message ‘Are your friends already on Facebook?’ is shown during the first step of the registration process, it did not explain that the imported e-mail contacts would be analysed and that invitation e-mails would be sent to those contacts who do not use Facebook. The fact that more detailed information is available on the website does not preclude the possibility that consumers are misled, since it is not ensured that every user is provided with such information.

The judgment of the German Federal Court of Justice concerns the controversial Facebook function ‘Friend Finder’ as it was used in the year 2010. The Court classified invitation e-mails sent by Facebook to the contacts of its users under this function as advertisement because the commercial interests of Facebook regarding those e-mails outweigh the private interests of its users. Consequently, the judgment, which is not yet available in full written form, is part of a series of German court decisions favouring a broad interpretations of the term “advertising”. Companies active in the field of online marketing should therefore pay close attention to their advertising practices and in case of doubts should not send any e-mails without obtaining prior consent, even if such messages serve additional purposes besides their nature as advertisements.