Term “Free” in the legal context
The term “Free” originates from English and translates to “frei” in German (meaning “free”). In the legal context, this term is used in various situations and fields of law. “Free” is often used to indicate a waiver of certain fees or charges, special provisions regarding the use of content, software, or services, as well as legal relationships characterized by the absence of contractual obligations. The following article examines the term comprehensively and provides a precise legal classification.
Use in contract law
Obligation and consideration
In contract law, “Free” describes situations where a service is offered without direct financial consideration. This concerns, in particular, so-called gratuitous contracts, such as gifts (§ 516 BGB) or loans for use (§ 598 BGB). In such cases, there is no obligation to pay, but other legal obligations, such as duties of care or return obligations, may still exist.
Advertising statements and commitments
When advertising goods or services with the addition “Free,” it is legally relevant whether or not any consideration or obligation actually arises. Especially in competition law (§§ 3, 5 UWG – Act Against Unfair Competition), misleading consumers is subject to sanctions. Advertising something as “Free” is problematic under competition law if data is collected, registrations are required, or other obligations must be entered into in return.
Data protection law aspects
Exchange of data for services
If allegedly “free” products involve the collection, storage, or transfer of personal data, data protection law is particularly relevant. According to Art. 4 No. 1 GDPR, personal data may only be processed under certain conditions. If consideration is provided by transmitting data, the offer stands in the field of tension between consumer protection and commercial interests.
Consent and information
Obtaining valid consent (Art. 7 GDPR) is mandatory when linking “Free” offers with data processing. Providers are obliged to transparently disclose the scope, purpose, and possible recipients of the data.
Copyright law relevance
Free software licenses
In software development, “Free” often refers to programs that are under so-called free licenses (Free and Open Source Software, FOSS). In this context, the author grants certain usage rights to the public. Despite the “freedom” of use, compliance with license conditions is mandatory. Well-known examples include the GNU General Public License (GPL) or the MIT License. Usage rights generally extend to reproduction, modification, and distribution under specific conditions.
Free content and licenses
For texts, images, and other creative works, “Free Licenses” likewise enable uses outside of traditional copyright protection. Creative Commons licenses, in particular, are well-known and grant rights to reproduce, modify, and share content depending on their specific terms. However, moral rights of authors remain unaffected.
Competition law assessment
Misrepresentation of actual value
The use of the term “Free” in advertising may lead to sanctions if hidden costs, obligations, or subsequent contracts actually occur. According to § 5 UWG, a commercial act is misleading if it contains false information about the gratuity of a service.
Effects on the Price Information Ordinance (PAngV)
As a rule, offers may only be labeled as “Free” if there are no hidden costs or mandatory additional services. The Price Information Ordinance requires that consumers be clearly informed about prices, price components, and any additional costs whenever obligations beyond the “zero tariff” are involved.
Consumer protection aspects
Transparency requirements
Consumer protection laws require transparent and understandable information about rights and obligations for offers advertised as “Free.” This regularly concerns cancellation rights, contract periods, and notice periods.
Patterns and piggybacking effects
“Free” offers are often used to legitimize subsequent payments (so-called in-app purchases), contractual commitments (“subscription traps”), or data usage. Here, protective mechanisms under the Civil Code (BGB), UWG, and the Telemedia Act (TMG) apply.
Competition and antitrust law considerations
Market power and dumping
The targeted placement of “Free” offers may, in certain circumstances, be considered anti-competitive, especially when carried out by market participants with significant market power. According to the Act Against Restraints of Competition (GWB), systematically displacing competitors through “zero-tariff” offerings (also known as dumping strategy) is potentially abusive (§ 19 GWB).
Summary
In legal terminology, the term “Free” is multifaceted and subject to strict statutory requirements designed to prevent abuse and deception. Legal assessments encompass aspects of contract law, data protection law, copyright law, competition law, and consumer protection considerations. It is always essential that offers, licenses, or services referred to as “Free” are in fact available to users without inappropriate consideration, obligations, or hidden costs, and that all legal regulations are complied with.
Further literature and sources
- Civil Code (BGB)
- Act Against Unfair Competition (UWG)
- General Data Protection Regulation (GDPR)
- Act Against Restraints of Competition (GWB)
- Price Information Ordinance (PAngV)
- Telemedia Act (TMG)
- Standard works on copyright and competition law
This article provides a comprehensive legal classification of the term and serves as a reference for legal questions relating to “Free.”
Frequently asked questions
What legal risks exist when using content labeled as “free”?
When using content designated as “free,” various legal risks arise, particularly in the areas of copyright and licensing law. A central risk lies in incorrectly or misleadingly labeling works as “free” when in fact no copyright releases or licenses exist. “Free” is often mistakenly interpreted as “public domain”; however, as long as works are still protected by copyright, express licensing or transfer of rights is always required. Further risks may result from restrictions within free licenses (such as Creative Commons), which allow use only under certain conditions. Unknown third-party rights (for example, to depicted persons, music samples, or trademarks) can also make license-free use impermissible or require additional permissions. Negligent use can lead to cease-and-desist orders, injunctive claims, and claims for damages if rights are infringed. It is therefore essential to clarify the precise licensing status and, if necessary, the origin of the content and to carefully review the applicable terms of use.
What obligations do I have when using “free” software from a legal perspective?
Even with software offered at no cost, such as open-source programs, specific legal obligations apply to users. Many “free” programs are provided under specific license terms (such as the GNU General Public License or the MIT License). These licenses permit use free of charge, but require compliance with terms such as attribution, sharing the source code upon modification, or prohibiting commercial use. Violations of license requirements can result in complete loss of usage rights and claims for damages. Furthermore, users should check whether accepting additional terms of service is required when installing freeware and whether personal data is collected as part of the use, which may have data protection implications (GDPR). It is also regularly recommended to verify the trustworthiness of the download source to minimize the risk of malware.
To what extent must consumer rights or information obligations be observed for “free” offers?
Even for offers described as “free”—such as trial versions, freemium models, web services, or free extras—numerous consumer protection regulations apply. Companies are particularly obliged to inform consumers clearly and comprehensively about the scope of the “free” offer, any time or functional restrictions, and the subsequent switch to paid services. According to the case law of the European Court of Justice and various national courts, transparency and information obligations apply as soon as a free service is offered, especially if personal data is processed or future contractual relationships are initiated. Free offers are frequently used specifically to collect customer data, which can be regarded as “consideration” for the use of an otherwise free service—in this case, data protection law and regulations on T&Cs apply.
What requirements apply to the labeling of “free” products or services?
Goods or services advertised as “free” must comply with the legal requirements of fair trading and competition law. Terms such as “gratis” (free of charge), “kostenlos” (without cost), or “umsonst” (for nothing) are only permissible if the end user actually incurs no costs—neither apparent nor hidden—and no paid additional services are required as a prerequisite for using the basic offer. Failing to disclose follow-up costs, subscription traps, or restrictive conditions of use constitutes an unfair business practice and may lead to warnings from competitors or consumer associations. Case law requires that restrictions (for example, registration requirements, limited functionality, or significant advertising) must be communicated clearly and obviously.
What legal requirements apply to the redistribution or sharing of “free” content?
The redistribution or sharing of “free” content is also subject to certain statutory and licensing requirements. If this concerns copyright-protected material under a free license, such as Creative Commons, the specific license conditions must be strictly followed—this often includes the obligation to provide attribution and indicate the license when sharing. If these requirements are violated, the licensor may terminate the usage rights and assert claims for damages. If content is merely labeled as “free,” it should be checked whether explicit usage rights for redistribution are granted. Otherwise, further distribution could constitute unauthorized action under copyright law.
Are there any legal particularities when using “free” images and music?
Particular care is required with “free” images or “free” music. In addition to copyright, numerous personality and trademark rights must be observed—depicted individuals must consent to publication; in the case of music, performance rights of performers, producers, and collecting societies may exist even if the actual song is considered “free.” For stock providers offering “free” resources, it is often necessary to carefully review the license terms and permitted uses, especially regarding commercial use, modification, or further distribution. Rash assumptions of a general release frequently result in legal conflicts.
Must data protection law aspects be considered for “free” offers?
Even for purely free offers, data protection regulations must be strictly observed. If personal data is collected, stored, or processed in connection with access to “free” content or services, the provisions of the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG) apply. Providers must inform users transparently about the type, scope, and purpose of data processing, and—depending on the circumstances—obtain express consent. Violation of data protection requirements can result in significant fines and injunctions; therefore, data protection-compliant handling of user data is essential even for free services.
