In its ruling of 06.06.2019 in the case “Identity theft” (Ref.: I ZR 216/17), the Federal Supreme Court decided that the request to pay for services not ordered is to be regarded as a misleading business act within the meaning of § 5 para. 1 sentence 2 case 1 UWG if the consumer addressed withdraws the claim from the request that he ordered the service (which was not the case).
Pursuant to Section 5 (1) sentence 1 UWG, anyone who commits a misleading commercial act which is likely to induce the consumer or other market participant to make a transactional decision which he would not otherwise have made is acting unfairly. Pursuant to Section 5 (1) sentence 2 UWG, a commercial act is misleading if it contains untrue information or other information suitable for deception about certain circumstances which are listed in detail in this statutory provision.
The plaintiff in the proceedings was Verbraucherzentrale Baden-Württemberg e.V. The defendant had first sent a reminder itself, then through a debt collection agency and finally through a lawyer a total of 4 requests for payment of an amount of 17.94 € for an allegedly ordered service. As it turned out, the consumer had not ordered this service. The defendant referred to the fact that probably a so-called identity theft would be present. Apparently an unknown third party had used the data of the consumer contacted to order the service in question. However, she was not responsible for this. Like the previous instances (LG and OLG Koblenz), the Federal Supreme Court decided that it would not matter whether such an “identity theft” had occurred or not. The claim for injunctive relief asserted by the plaintiff was independent of fault. With the requests for payment, the defendant had asserted that the consumer had ordered the service. That assertion was untrue. Furthermore, that untrue allegation was also such as to induce the consumer to make a transactional decision (namely the payment requested) which he would not otherwise have made. For this reason alone, the claim for injunctive relief asserted pursuant to § 8 (1) UWG was well-founded.
