GERMANY

Ingo HEINEMANN

Lawyer, Director of A.G.P.F.

A contractual law for the psychomarket
Consumer protection as regards non-medical practitioners

Between 1978 and 1984, the German confederation of associations, AGPF, has closely studied questions of health which could arise from the problem of cults. These include:

Recently, in Germany, several important meetings have been organised on this subject and several books have been published (1).

As a consequence, we demanded in1984 the creation of legislation relating to the matter.
First of all, we thought of a ban on the abusive exercise of influence, but this idea became too difficult to realise.
It then became very clear to us that this exercise of influence was also used for the marketing of goods and services.
It was clear that almost all cults had some marketing activity.
It is for that reason that Ursula Caberta (2) drew up the proposition of a contractual law.

Currently, a law of this kind is going through its second reading (3) in the German Bundestag.

On a European scale, it would be necessary to try to create such a contractual law as well as a ban on the abusive exercise of influence. We suppose that 90 % of cults will propose curative therapies of one kind or another.
In the majority of cases no doctor is concerned in these practices. These cults, then, act as healers. That is also the case when they do not have the authorisation required in the majority of countries for the carrying out of curative treatments.

By "curative treatments", we do not mean the act of prayer with the aim of recovering one’s health. Nor do we include the exercise of prayer with a view to obtaining a cure in any individual case. On the other hand, we do include concrete acts and the promise that these acts will bring about a cure.
When payment is expected or demanded for these acts, i.e. when it is a question of money, a contract is also made.
It is this type of contract with which we are concerned here

In Germany, the Federal Constitutional Court stated only a few weeks ago that spiritual healers do not need authorisation to act as such (4). The number of spiritual healers is therefore likely to increase considerably. Spiritual healing is thus seen as definitively classed as a professional activity, just like any other activity. In the market of the psyche, help is also very frequently offered for all the problems of life.
That is why, in a very general manner, we are dealing with psycho-social advice and support via payment. I am not therefore speaking here of just theory. Such a law is currently in the process of discussion in the German Bundestag.
It is entitled "Lebensbewältigungshilfegesetz" [ federal act governing contracts in the field of commercial life-counselling services].

I have called it "Psycho Vertrags Gesetz" [Psycho Contract Law].
AGPF has been demanding such a law since 1984. One proposition for a law has already been put before the Bundestag in 1998. In that year it was not possible to deal with it before the end of the legislative programme.
I hope, therefore, that this time the law in question will be voted upon. I hope also that one day or another it will be taken to European level.

This law must not decide on the question of knowing whether belief, placebos, information, confidence or ritual can help or be effective. Nor must this law decide on the question of knowing whether a particular method is sensible or a nonsense.

This law simply says: when one is selling placebos, information, confidence or rituals, the contract must have a minimum defined content so that the consumer is protected. Furthermore, this law must not be applied to normal medical treatment.

FECRIS and its member organisations are primarily concerned with sects and cults.

Among the aims of these organisations are:

Prevention has, among its other aims, that of ascertaining the need for an amendment or the creation of laws.
It is not a matter of an intellectual game for lawyers. It is a question of bringing about claims. Because he who does not demand anything of a policy will get nothing from it either. But that also means that we must convince politicians of the existence of a concrete problem which needs correcting. As for claims addressed to politicians, it is essential that they can be satisfied. Panacea laws which allow the resolution of anything are not realistic. Because laws only ever apply to factual situations and precise juridical areas.
That is why there is every reason to suppose that there will never be a general law relating to cults.

The question is, then, to know which factual situations can be regulated. Questions of belief cannot be regulated by laws. One cannot prevent a person from believing in the efficiency of the procedure which Scientology calls "auditing". There are hundreds of similar procedures proposed by hundreds of other providers.

On the other hand, questions involving money must be covered by laws. When someone sells something,
any laws concerning the sale apply to him. When one gives money in exchange for goods or services, there is always a contract behind it. What is important is not to know whether the latter was made in writing. A contract can just as well be made orally or by deed, as for example in the remittance of money.

When individuals buy goods or services, they are known as consumers. Consumers do not have a legal service.

That is why consumers have the need for protection: protection against crooks, against noxious or dangerous products, against false or misleading advertising and against the legal services of salesmen. It is the reason why there exists protection for consumers and laws for the protection of consumers.

The European Community has made the protection of consumers an important principle of protection.
That is why, for the transfer of European rights, the notion of the consumer was introduced in 2002 into the German civil code (deutsches Bürgerliches Gesetzbuch, BGB). The same thing exists in all countries of the European Community.
When legal action is brought between a provider and a consumer, between seller and buyer, the first question to be put is always to find out what is covered by the contract. This will depend upon:

In accordance with these laws, a contract is often declared totally or partially void. So laws are applied.
But which law? The reply to the question of knowing which laws are applicable in a particular case will be the function of the subject of the contract.

A (package) holiday is governed by laws other than those covering the purchase of a car. The subject of the contract is often difficult to determine. This difficulty is, for example, set out for (package) holidays. A holiday includes the holidaymaker’s transport, but it also includes his room and midday meal, and since the consumer does not have a legal service, he has frequently been the victim of deception. That is the reason why the contractual right for holidays has been introduced in Europe.

The case of offers made on the "psycho-market" is very similar. It is necessary, first of all, to identify what has been sold. There is no uniform use of names of products. On the contrary: each provider will invent new concepts and pretend that his offer is completely new and unique. That is why it is equally difficult to identify which rights and which obligations cover the contracting parties. How can it be determined whether the contract has been fulfilled or not? There arises a legal uncertainty and a lack of fairness (or of justice). A gap in the matter of fairness (or of justice).

The courts do not know which law should be applied. The lawyers are not in a position to evaluate their chances of success in a trial. That is why, in this field, Justice seems currently to be just a throw of the dice. When the promised service has not been provided and the consumer goes before the courts, no-one can currently foresee exactly the outcome of such a trial. That is the reason why there are so few judgements in this area, even on an international scale.

An example:
I choose, as my example, Scientology, because it figures as a world-leader on the "psycho-market". Scientology not only sells a belief in UFOs, but also and especially alleged cures for psychological and somatic illnesses. Scientology is waging a war against psychiatry and intends to create for itself a monopoly in the domain of treatments for psychiatric problems.

One hour of ’"auditing" by Scientology costs around 1 200 euros per hour, sometimes more, sometimes less (5). Certainly they don’t sell "an hour of "auditing". What they sell is "1 intensive course", which represents 12.5 hours. In addition, there are manifestly different versions of this product called "auditing". However, the description of these different versions with the corresponding prices does not feature anywhere, and the client receives no contract where all this is described precisely. He receives nothing more than a bill carrying the word "auditing", the number of "intensive courses" and several abbreviations which are totally incomprehensible. So the client pays out 15 000 euros without receiving the least description of any kind of what he should expect for that sum of money.
These 15 000 euros, it should be understood, must be paid in advance, and in full. This is the uniqueness of the "psycho-market" (6) : the product is quite simply invisible.

The protection of the consumer (7) in the "psycho-market" takes on a particular importance because:

Even in the "psycho-market", people do have recourse to certain "General conditions of sale" which are rules deemed to apply to all contracts. They are shown to be for the most part so complicated that the consumer’s legal service needs to have its own legal service for just that purpose. This is why the majority of countries have their own laws which lay down precisely which of these conditions are effective and which not.
Even Scientology has certain "General conditions of sale" (8) : the burning issues of "information, definitions et rules concerning students et Preclears". They are presented at some point to the client for signature. Usually the client does not receive a single copy. Nor is it possible to find them on Scientology’s Internet offer, and even less so any mention of "General conditions of sale".

But as soon as someone wishes to claim his money back, these "rules" reappear as though by magic.
They are then produced in front of the courts. One can then read that: when "auditing" has not worked, the client must try to improve himself afterwards. He must, then, purchase another session of "auditing". Deadlines are reduces in a draconian fashion: the client can only claim reimbursement up to 90 days after the course.
This is why the example of Scientology is so concerning.

In Germany, there are most certainly several hundred cults and other organisations offering advice and support via payment. One can probably add to those thousands of individuals who also make offers. They are all selling courses in the same manner.
There almost always arises the question of the exercise of influence and of self-influence.
For example, one can learn self control. Maybe running over red-hot coals. They claim that one can learn to control one’s own body by doing this and that one’s feet are not burned. It has been known for many years that no-one burns his feet by running over burning coals as long as he doesn’t stop (9).
Contact time is too short for that yet these programmes continue to be sold as in the past. All the same, it should be pointed out: no-one needs to run over burning coals. The product is not how to run over burning coals,but a programme thanks to which one can, allegedly, learn to master one’s own body.

Currently, it is practically impossible for a client to get his money back. And it is the same in all countries.
The reason for this is that generally it is a question of an atypical contract content. That is to say that one is happy to shelter behind the subject of a contract - example: running over burning coals when, in reality it is about something else entirely, i.e. an alleged mastery of one’s own body. Such a contractual law could also be drawn up for Europe.

It could also include advertising. In the "psycho-market", one can see the practice of the extreme limits of advertising.
We might cite the example of emotional conditioning. The German university professor Kroeber-Riel (10) studied advertising in the 70’s with the help of his "eye camera", and discovered that there exists a form of advertising against which it is almost impossible to defend oneself. This is advertising which calls upon the "innate pre-dispositions" of the human being. He dubbed them "dangerous weapons" and demanded that the laws be changed: "the consistent objective of preventing brain conditioning can only be achieved through a means of protection for consumers which puts an end to this conditioning." Kroeber-Riel did not study cults, only advertising.
Until now we have not had any generally used concept for such forms of advertising.

This is why currently, as in recent years, we familiarly refer to such publicity as brainwashing.
This type of advertising is suspected of initiating an automatic incitement to purchase. This type of advertising is also used in direct connection with diagnosis and treatment.
Scientology, for example, uses a personality test which is presented and used in particular cases as a diagnostic instrument. In individual cases, it could result in the diagnosis of acute risk of suicide. Linked to this is the pressing advice to follow a certain course, and so, usually, to buy "auditing".
It is possible to integrate this form of advertising with legislative regulations.
As a reminder: in Europe, cigarette advertising is already strictly limited. 20 years ago, no-one would have imagined that such a thing were possible.

The outcome of such a law will be that :

All this has already been in existence for a long time in some areas. Finally, such a law has been conceived when sales on Internet have become popular. In the space of only a few years, there have been laws of this type throughout Europe.

One day we will have such a contractual law for the "psycho-market" for Europe, simply because there is here a gap in the protection of consumers. But we must take one step further:

We should demand that:

In the case of the resorting to emotional conditioning, the contract should be null and void. It is not, then, a question of, for example, banning brainwashing. It would equally concern indefinable frontier zones.
It would be impossible to impose, but on the other hand the relevant contract in the "psycho-market" would be ineffective in the case of the use of emotional conditioning.

What can we do today?

We can say to our MPs: We want an European contractual law to regulate the "psycho-market".

Marseilles March 27-28 2004

Notes:

(1) Karbe and Müller-Küppers : Destruktive Kulte. Gesellschaftliche und gesundheitliche Folgen totalitärer pseudoreligiöser Bewegungen [Destructive cults. The effects of totalitarian pseudo-religious movements on society and on health]. Verlag für Med. Psychologie Göttingen 1983, ISBN 3-525-45227-6
www.AGPF.de/Karbe81.htm
Müller-Küppers, Manfred / Specht, Friedrich: "Neue Jugendreligionen" [The new religions for the young]. Verlag Vandenhoeck & Ruprecht, Göttingen 1979. As an appendix : Auszüge aus der Dokumentation über die Auswirkung der Jugendreligionen auf Jugendliche in Einzelfällen [Extracts from the documentation on the impact of religions for young people on the young, in the light of particular cases], AGPF 1978, about 50 pages, ISBN 3-525-45224-1

(2) Ursula Caberta heads the governmental working group on Scientology in the Land of Hamburg. This is named "Oberste Landesjugendbehörde für den Jugendschutz bezüglich neuer religiöser und ideologischer Gemeinschaften und Psychogruppen" [High Authority of the Land for Youth, charged with the protection of young people from the new religious and ideological communities and psycho-influential groups], www.Arbeitsgruppe-Scientology.de

(3) www.AGPF.de/Psychogesetz.htm, www.AGPF.de/PsychoVertragsGesetz-Bayern2003.htm

(4) Bundesverfassungsgericht [Federal constitutional court] 1 BvR 784/03, bye-law of 2 March 2004

(5) Tariffs : see www.Ingo-Heinemann.de/Preise2000.htm

(6) www.AGPF.de/psychomarkt.htm , description in English : The Enquete Commission of the Bundestag about the psycho-market :

(7) www.AGPF.de/Verbraucherschutz.htm

(8) http://www.Ingo-Heinemann.de/Vertragsbedingungen2002.htm

(9) www.AGPF.de/akt87-2.htm#FEUER

(10) Prof. Dr. Kroeber-Riel : Konsumentenverhalten [The behaviour of consumers]. 2nd edition 1980. Kroeber-Riel calls such advertising (without reference to Scientology or to cults) " emotional conditioning".
In his opinion, it is scarcely possible to avoid it, even when you know what it is about, and education on this topic presents, at the most, a partial effectiveness:
"Such stimuli, which initiate solidly anchored behaviour, produce effects in the most secure way. As ethological research has shown us, a part is especially played by stimuli which call strongly upon the "innate pre-dispositions" of the human being and so become dangerous weapons once they fall into the hands of advertisers …
"Lastly, I should mention some implications for the defence policy of consumers.
Conditioned behaviour is, as has already been explained, a "behaviour guided by stimuli". Even a negative attitude or a defensive position as regards publicity cannot harm the success of conditioning. One is even entitled to suppose that the consumer, even when he tries intentionally to do so, is incapable of ridding himself of such conditioning. From this, conclusions can be drawn on the matter of a defence policy for consumers: if one wishes to prevent the conditioning of the consumer, for example because it establishes emotional links with harmful products, it serves no purpose to educate the consumer and to call upon his reasoning.
The consistent aim of preventing conditioning can only be attained by a protection for consumers which puts an end to conditioning. It is here where gaps appear in a policy of defence for consumers which is excessively attached to the normative model of the reasonable consumer, and directs its measures especially towards informing and educating consumers (KROEBER-RIEL, 1977b). ... The objection sometimes put forward, according to which the conditioning of the consumer can never cause him to buy products which he has absolutely no desire to use, misses the point of the basis of the problem.
Very evidently it is not possible, and very evidently conditioning is only possible within the framework of a  "diversity of easily manipulated reactions" (see on this subject pp. 590 >.). But already, in itself, conditioning within the remaining margins of manoeuvre confronts us with the considerable problems posed by human behaviour". (p. 146)
See www.ingo-heinemann.de/kroeber.htm .