At the end of January the German Bundesgerichtshof (BGH) came with an interesting judgment relating to the “finding friends” function offered by Facebook. Although at first glance this seems to be completely harmless, this proves to be illicit nonetheless, since it constitutes a form of aggressive advertisement.
The functions allows users to upload all their e-mail contacts to Facebook, after which Facebook will send an invitation to all those contacts, even when they are not registered on Facebook.
So what’s the problem then? Well, on one hand users are being misled about the exact nature and scope of the function. Users are only presented with the question “Are your friends on Facebook?” without being informed about the fact that invitation e-mails are going to be sent. On the other hand these invitation e-mails are considered as aggressive advertisement.
With its judgment the BGH confirms two previous judgments that came to a similar conclusion – this case started already six years ago. Facebook’s defense that this should not be considered as advertisement but a mere tool that allows users to extend their network is not being withheld.
Although this is a German case, it is highly likely that the Belgian courts would also have condemned Facebook, since Belgian legislation contains counterparts for the legal ground invoked by the BGH. They can be found in the Economic Code:
VI.97 A commercial practice shall be regarded as misleading if it contains false information and (…) deceives or is likely to deceive the average consumer (…) and (…) causes or is likely to cause him to take a transactional decision that he would not have taken otherwise (…)
VI.103 Are considered, under all circumstances, to be unfair commercial practices, the following aggressive commercial practices (…)
3° making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media (…)
It needs no explanation that this judgment is relevant for all other social media who invite people to join their network by sending them e-mails.