An (undetermined) fraud in the terms of use Before asking this question, I should say some words. Because this question seems similar to another question I asked, I worry someone may mark this as a duplicate without understanding - In fact, they were different. Disclaimer: This is only an educational case. I am neither the scammer, the victim, nor someone scheming to scam. Let's say, Tom was scammed by a &quot;bitcoin mining website&quot;, the website owner, say, Bob, was a scammer. Suppose that Bob and Tom are all in the US, and are all under the jurisdiction of the US. Below is how this thing happened: One day, Tom opened Bob's website while surfing Google. The website said: &quot;we have a software, which mines bitcoin at a very fast speed - because it uses new technology to mine bitcoin.&quot; &quot;It is more than 1000 times faster than traditional mining.&quot; Tom was allured by the &quot;potential wealth&quot;, so he downloaded the software, and went through the setup, and installed that alleged &quot;New Technology Bitcoin Miner&quot;. The software was made by Bob, too. During the setup, there was a window of &quot;terms of use&quot;, written by Bob. At the very end of the &quot;terms of use&quot;, Bob wrote down this: Our bitcoin mining service has been already suspended in xx/xx/2019, due to legal and financial reasons. You can still use this software, but it will only work as a simulation, therefore, it will not produce real bitcoin. Agreement to this term of use means that any payment you make in the software is regarded as payment for the simulation. However, Tom was too hurry, so he didn't read the tedious &quot;terms of use&quot;. He straight clicked &quot;Agree&quot; and installed the software, a/k/a &quot;New Technology Bitcoin Miner&quot;. Then, the software began asking for payment. It said to Tom: If you want to mine bitcoin, you should pay $999 for our service first. So, Tom paid $999 and started &quot;mining bitcoin&quot; in this alleged &quot;New Technology Bitcoin Miner&quot;. The software simulated the mining process. At last, Tom got no bitcoin into his wallet. (And, in fact, the alleged &quot;New Technology Bitcoin Miner&quot; didn't do real mining at all.) Tom felt he was defrauded, so he was about to report the website owner, Bob. My questions: From the perspective of US law, is Bob doing this regarded a fraud? Is this a criminal case, or a civil case? What evidence can Tom provide to support the lawsuit?
A contract can’t legalise illegality Let’s assume that absent the “simulation” disclosure in the ToS, this would be fraud. The question then becomes, does making the disclosure make it not fraud? Fraud requires dishonesty and deception. These are measured by what a reasonable person would determine from the overall conduct so a small piece of truth in amongst a web of half-truths and outright lies is still dishonest and deceptive. From the perspective of US law, is Bob doing this regarded a scam? No, but only because “scam” isn’t a legal term - it’s slang for fraud and this is fraud Is this a criminal case, or a civil case? Both What evidence can Tom provide to support the lawsuit? Whatever he has. However, in practice, these types of fraudsters are rarely ever caught and it’s even more rare for the victim to recover their money. They are usually off-shore in countries with either poor rule of law or which will not extradite their nationals.
If you were to seek legal recourse for breach of contract (their Terms and Conditions), the best outcome you could hope for would be "making whole", and since they have already offered this a court could award you what the retailer already offered, but make legal costs on both sides the plaintiff's liability (ie. you), since you could have taken the offer and avoided court. The Terms and Conditions associated with the discount code mean that you won't be able to return the gift cards for cash. It will be argued that by using the code, you agreed to those terms and conditions. The second paragraph of their reply looks like an attempt to scare you, but it has legal merit. By using the unauthorised code you could be considered to have made false representation when you entered into the contract. This could render the contract void, and if they could demonstrate it had been done deliberately to gain money it could meet the threshold for fraud (which is what the police would possibly investigate : if it can be shown that you were aware the discount code didn't apply to you it would constitute making "a false representation ... to make a gain for himself" [sub-paragraphs 1-5, paragraph 2 of the Fraud Act 2006]). You may be able to argue that the voucher websites misled you (though it sounds like you, I and the retailer already know that's not true), but since the retailer has offered to repay what you paid there are unlikely to be any damages - and, unless the voucher site took commission from your transaction, a contract between you and the voucher sites would be difficult (possibly impossible) to establish. In the circumstances, returning what you originally paid is a good offer.
Nobody know what constitutes "scamming", because it's not a legal concept. There is no sense in which receiving a gift itself constitutes "scamming". Since scamming is vaguely about dishonesty, there is an imaginable scenario where you could be liable for a false representation, for example if you impersonated someone else in order to receive something of value, you could be prosecuted in California. You should not assume that a police officer saying "That's not our problem" is proof that you committed no crime or civil tort. Your lawyer can give you advice as to whether you have anything to worry about, legally. The other stuff about being called a scammer or having pictures posted might be a violation of Facebook's TOS, and you can always complain to Facebook central authorities. Technically, uploading a picture that someone took is a violation of copyright law, if you didn't give permission to do so. It might run afoul of some state~provincial or national privacy law, depending on where this takes place.
No Let's consider a similar scenario. If you made a beverage which poisoned a number of people, would you be absolved of liability because you gave it away for free? Of course not. As there is no contract between you, they would have to bring an action against you in the tort of negligence or negligent misstatement OR under consumer protection law. To succeed at tort they would need to prove that you owed them a duty of care; from Donoghue v Stevenson "You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure ... persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation ...". Most cases will founder on your inability to foresee the use to which your software may be put. Consumer law is jurisdiction specific but they generally contain warranties that what you provide (gratis or otherwise) is fit for purpose, merchantable and that you do not make false and misleading statements. There is a chance that a case brought under this sort of law could succeed as you have not limited the purpose, specifically declared that it is not of merchantable quality and have (presumable) said what it does so that, if it doesn't do what you said, you have been misleading and deceptive.
The person getting the item by fraud didn't get any ownership. Therefore when you bought it, you didn't get ownership either. It's still the company's property, and they can do with it what they like (within reason, they wouldn't be allowed to make it blow up in your face). If you sent back the item, good on you, because the item is now with its rightful owner. If you don't like it, you can sue the person who sold the item to you.
Check the website's terms of service. Check to see if you're violating these terms, and check to see if the script you are making enables other people to violate them. Courts don't often look kindly on actions whose sole purpose is enabling someone else to do something that is prohibited. If you're making a script that helps people do something they're allowed to do, in a way that's better for at least somebody and makes nobody worse off, that's often a different story. Major websites will generally indicate whether or not you're allowed to do this. Some sites are fairly strict about prohibiting scraping (e.g. Craigslist, which at one point shut down Padmapper's alternative more-useful presentation of their content). Others, like Wikipedia, much more actively encourage reusing content from their sites as long as you meet certain conditions such as a link back to the original source.
The applicable law is the New Zealand Anti-Money Laundering law. The regulations describing exactly what is covered don't mention Bitcoin cleaning, but the "wire transfer" and "currency exchange" bits probably cover such a thing. I certainly wouldn't like to be the test case. There was also this case in Europe.
In all such offers that I have seen, there is an agreement explicitly saying that if the service is not cancelled by the end date of the trial, a recurring charge for the price of the service will be made, and the customer authorizes this. If there was such an agreement, the charges would be authorized, not fraudulent. The question does not say what agreement accompanied the free trial. But any reasonable person would know that credit card info is only provided when a charge is at least possible. Addition: The question now says: Reviewing an example of the vendor's website, it says in big print &quot;Monthly Plan $0.00/mo&quot; and in fine gray print it says &quot;Renews at $5.88/month.&quot; In that case it seems to me that the customer agreed to the recurring charge. What was purchased was access to the service, and whether the service was in fact used is not relevant. Unless there is a consumer protection law specifically requiring such terms to be &quot;prominent&quot; or otherwise making this deal unlawful, it seem to me that the customer has agreed, and the charge nis in no way a false claim. But it is possible that a court would rule otherwise. It is my experiences that in such cases the credit card company can and sometimes will act as an agent for the customer, and can often obtain refunds for multiple past charges. No doubt they have mush stronger negotiating power. But such refunds are not a matter of law, I think, rather of business practice and good will.