If the user of a mobile phone with navigation software has purchased it from his mobile phone provider, he does not have to pay for the costs of internet use if the navigation software automatically starts a chargeable map update when it is installed and there is no explicit notice from his mobile phone provider of the cost consequences. This was decided by the 16th Civil Senate of the Schleswig-Holstein Higher Regional Court in a recently published ruling.
The facts of the case: The plaintiff company is a mobile communications provider. The company concluded a contract with the defendant consumer for mobile communications services, which also included the use of the Internet. The prices for Internet use were based on the amount of data accessed and the amount of time spent using the service. The rate for Internet use was only worthwhile for minor Internet use. The mobile communications provider charged the consumer EUR 11,498.05 for a period of 20 days.
On the occasion of a contract extension, the consumer had purchased a cell phone from the mobile communications provider at a favorable price in exchange for an additional payment, which, according to the mobile communications provider's advertising, also included navigation software. When the consumer installed the navigation software on the new cell phone, an update of the existing map material automatically started via the Internet, which took several hours.
From the reasons for the decision: The Upper District Court considered the conduct of the mobile phone provider to be a breach of contractual obligations, so that the latter was not entitled to the agreed fee for internet use according to "good faith": "The plaintiff breached its ancillary duties under the mobile phone contract by selling the defendants a mobile phone without emphatically warning them of the cost trap, which provided for a chargeable automatically starting map update as part of the installation of the navigation software. A secondary obligation in the context of a mobile phone contract is the duty of both contracting parties to ensure that the contractual relationship is handled as smoothly and transparently as possible, and the duty of care to prevent damage to the other party if possible. The buyer of a mobile phone with navigation software assumes that it is up to date. If he has to decide in the course of the installation whether he wants to initiate a map update, he will and may think that only in this way and without further costs can he obtain the up-to-date software to which he is entitled under the contract of sale. The seller would have to expressly point out anything to the contrary, which did not happen here."
The defendant consumer now only has to pay 35.93 euros for the use of further mobile phone services.
Schleswig-Holstein Higher Regional Court, Judgment of 15.9.2011, Case No. 16 U 140/10
Source: Press release of the Higher Regional Court of Schleswig, Dr. Christine von Milczewski, Judge at the Higher Regional Court, Press Officer
Goldberg Attorneys at Law 2011
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
