The III Civil Senate of the Federal Court of Justice, which is responsible for telecommunications law among other things, awarded the customer of a telecommunications company damages for the failure of his DSL connection (internet connection) for several weeks.
As a result of an error by the defendant telecommunications company during a tariff change, the plaintiff was unable to use his DSL internet connection in the period from 15 December 2008 to 16 February 2009. He also used this connection for his telephone and fax traffic (Voice and Fax over IP, VoIP). In addition to additional costs incurred as a result of the change to another provider and for the use of a mobile phone, the plaintiff claimed damages for the loss of the possibility to use his DSL connection for landline telephony as well as for fax and internet traffic during the aforementioned period in the amount of €50 per day. In the lower courts, the plaintiff was awarded € 457.50 for the higher fee incurred with the other provider as well as for the costs of mobile phone use.
With his appeal, which was allowed by the court of appeal, the plaintiff continued to pursue his claim for damages for the lost opportunities to use his DSL connection.
According to the case law of the Federal Court of Justice, compensation for the loss of the ability to use an asset must in principle be reserved for cases in which the malfunction typically has a significant effect as such on the material basis of the standard of living.
Applying this standard, the Third Civil Senate denied a claim for damages due to the failure of the fax. This merely provides the opportunity to send texts or illustrations more conveniently and more quickly than by conventional mail. The discontinuation of the fax does not have a significant effect, at least in the private sector at issue here, especially since this type of telecommunications is increasingly being replaced by the sending of text and image files by electronic mail.
As a result, the senate rejected a claim for damages also for the failure of the landline telephone. However, the possibility to use the telephone is an economic good, the constant availability of which is of central importance for the organisation of life. However, the tortfeasor's obligation to compensate for the loss of the possibility to benefit from the use of an economic good does not apply if the injured party has an equivalent substitute available and is compensated for the additional expenses incurred. This was the case here because the plaintiff used a mobile phone during the relevant period and could claim compensation for the additional costs incurred.
In contrast, the senate awarded the plaintiff damages on the merits for the loss of the possibility to use his internet access for purposes other than telephone and fax traffic. The usability of the internet is an economic good, the constant availability of which has been of central importance for a long time, even in the private sphere, for one's own economic lifestyle. The internet provides comprehensive information worldwide in the form of text, image, video and audio files. Thematically, almost all areas are covered and a wide variety of qualitative demands are satisfied. Thus, for example, files with light entertainment can be accessed as well as information on everyday questions up to highly scientific topics. Because of the easy availability of information, the internet is increasingly replacing other media such as encyclopaedias, magazines or television. In addition, it enables worldwide exchange between its users, for example via e-mails, forums, blogs and social networks. It is also increasingly used to initiate and conclude contracts, to conduct legal transactions and to fulfil public-law obligations. The majority of Germany's inhabitants use the internet on a daily basis. It has thus developed into a medium that decisively shapes the lives of a large part of the population, the loss of which has a significant impact on everyday life.
With regard to the amount of damages, the senate stated that the plaintiff, by applying the principles developed by case law in this respect to the present case, can demand an amount which is based on the average costs customary in the market which would have been incurred in the relevant period for the provision of a DSL connection with the agreed capacity without telephone and fax use, adjusted for the profit-oriented and other value factors relating to commercial use.
The Senate referred the case back to the Court of Appeal for further clarification of the facts.
Judgment of the BGH of 24 January 2013 - III ZR 98/12
Lower courts:
AG Montabaur - Judgment of December 7, 2010 - 5 C 442/10
Koblenz Regional Court - Judgment of March 7, 2012 - 12 S 13/11
Source: Press release of the BGH
Goldberg Attorneys at Law 2013
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
