In a ruling of 16 June 2010, the Higher Regional Court of Frankfurt am Main (OLG Frankfurt. a.M.) confirmed a decision of the Regional Court of Darmstadt (LG Darmstadt) according to which a Telekom customer is not entitled to immediate deletion of the IP addresses (Internet Protocol addresses) assigned for Internet use.
Background
Years ago, the plaintiff concluded an internet access contract with the defendant Telekom AG according to the so-called "T-Online dsl flat tariff". He demanded that Telekom delete the "dynamic IP addresses" assigned to him for internet use immediately after the connection was terminated.
At the time the action was filed, the defendant stored the IP addresses for 80 days after sending the invoice. In June 2007, the Regional Court upheld the action insofar as it prohibited Telekom from storing the data for longer than seven days. In the same year, Telekom changed its practice to reduce the storage period to seven days. This new storage practice is in accordance with an agreement with the Federal Commissioner for Data Protection.
In his appeal, the plaintiff further argues that the defendant must delete the IP addresses immediately after terminating an internet connection. The defendant was obliged to do so in the interest of data protection and the protection of the plaintiff's privacy. Because IP addresses make it possible to spy on user behaviour and draw conclusions about the personality of the respective subscriber, a storage period of (only) seven days is also unacceptable.
According to the defendant, it is entitled to collect and use the IP addresses for the purpose of detecting, isolating and eliminating faults and malfunctions in its systems and for billing the users.
Legal considerations of the Higher Regional Court
The 13th Civil Senate of the Higher Regional Court, which is responsible for the appeal and has its seat in Darmstadt, now dismissed the appeal. In its reasoning, the court essentially stated that there was no apparent legal reason according to which Telekom was obliged to delete the IP addresses immediately after the internet connection was terminated.
Thus, in relevant rulings, the Federal Constitutional Court had not even begun to question the legality of data storage by service providers in connection with telecommunications traffic.
According to the current technical circumstances, it must be assumed that if the IP addresses were deleted "immediately" after the internet connection was terminated, it would not be possible for Telekom to bill its customers at all. The IP addresses were therefore "necessary data" for the "calculation of the fee" within the meaning of the Telecommunications Act (TKG). The plaintiff had not been able to demonstrate that Telekom currently had better technical possibilities.
In addition, if the IP addresses were deleted immediately, it would be practically impossible for Telekom to detect, limit and eliminate a relevant part of faults and errors in telecommunications systems.
Under these conditions, the plaintiff could at most demand "immediate" deletion, which was not to be understood as "immediate" deletion, but as deletion "without culpable delay". The plaintiff, who had the burden of proof in the present civil proceedings, had not been able to demonstrate that it was possible for Telekom to delete the IP addresses more quickly than after the expiry of seven days, without this affecting its billing with its customers and the detection of interference.
Significance of the decision
The decision is likely to be significant only until the new regulation of the obligation of telecommunications services to store and keep available traffic data for the prosecution of criminal offences and for the prevention of significant threats to public safety. On 2 March 2010, the Federal Constitutional Court had declared unconstitutional the provisions of §§ 113 a, 113 b TKG, which entered into force on 1 January 2008 and provided for a six-month retention of data. As soon as the legislature replaces the unconstitutional regulations with a new regulation on data storage, Telekom should also be subject to a corresponding obligation and the internet user's right to early deletion would thus be obsolete.
OLG Frankfurt am Main, judgement of 16.6.2010, file number 13 U 105/07
Source: Press release of the Higher Regional Court Frankfurt a.M., Press Spokesman RiOLG Ingo Nöhre
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
