Facebook and Instagram
OLG: Meta violated German law with its paid subscription
Meta had labeled order buttons with “Subscribe” or “Proceed to payment,” but not with wording like “order with payment.” photo
© Rafael Henrique/Zuma Press/dpa
Meta provides ad-free versions of the networks for Facebook and Instagram. However, when implementing the ordering process online, the US company did not take details of German law into account.
The online group Meta has introduced an ad-free version of the networks Facebook and Instagram violated provisions of German consumer protection law last November. The Düsseldorf Higher Regional Court determined this in a decision. (File number: I-20 UKlaG 4/23).
The injunction brought by the North Rhine-Westphalia Consumer Center concerned the design of the button used to complete a subscription order.
“Agreement to pay for the order you are placing”
According to the German Civil Code (BGB), order buttons must clearly indicate an obligation to pay. This was also confirmed by the European Court of Justice (ECJ) in 2022. According to this, consumers must expressly confirm when placing an order that it is associated with a payment obligation. The button must then contain the wording “order with payment” or another clear text. But Meta had only labeled the order button “Subscribe”. In the apps on smartphones, the order button was labeled “Proceed to payment”.
The consumer advice center saw this as a violation of consumer protection law because the order buttons did not adequately indicate that a paid subscription contract would be concluded upon confirmation. The 20th Civil Senate at the Düsseldorf Higher Regional Court approved the application. Entrepreneurs are legally obliged to mark order buttons with clear wording such as “order with payment”. “Subscribing” is not enough because there are also free subscriptions. The fact that the cost of the subscription is clearly stated before and during the ordering process is irrelevant. Only the text on the button is decisive.
According to the ruling, the order button in the apps “Proceed to payment” also does not meet the legal consumer protection requirements. There is, however, no indication that there is a charge here. However, it is not clear to the consumer that he is already concluding a contract by pressing this button and is not simply being redirected to another page to provide his data and conclude a binding contract. The judgment is final.
Facebook without advertising for 9.99 euros
Meta offers an ad-free version of the network for customers in Germany, among others. The price for Facebook without advertising is 9.99 euros per month. Anyone who accepts personalized ads can continue to use the networks free of charge. With the paid subscriptions, Meta is reacting to the changing data protection situation in Europe following court rulings and decisions by regulators.
The consumer advocates were unable to prevail in court on a minor point. During the expedited procedure, they complained that the buttons and websites necessary for cancellation were only accessible to consumers once they had registered. The OLG ruled that the urgency required for the issuance of the interim injunction was already lacking. However, the consumer advice center had known since November 23, 2023 at the latest that the buttons and websites in question were not on the generally accessible website. She could have made this the subject of her application from the outset.
A Meta spokeswoman explained that the OLG ruling only related to how the subscription without advertising interacts with very specific aspects of German consumer law. “Many online services offer similar subscription models and we are confident that our subscription model complies with European law.”
Consumer protection: No obligation to pay
The North Rhine-Westphalia consumer advice center explained that the faulty order button meant that subscriptions for Instagram and Facebook that had already been taken out were ineffective. Affected consumers who have taken out a subscription using the incorrect button are therefore not obliged to pay. Meta could also be legally required to repay subscription fees that have already been unlawfully collected through a legal action. “The North Rhine-Westphalia consumer advice center is currently examining whether to file a corresponding lawsuit.”