A judgment by the Augsburg Regional Court dated April 24, 2007, file number 3 O 678/06 (not yet legally binding), has once again strengthened the rights of mobile phone users. According to the Augsburg Regional Court's judgment, the burden of proof for the utilization of services, particularly for establishing a connection, generally lies with the telecommunications service provider (BGH NJW 2004, page 3183 et seq.).
In the present case, a mobile network operator demanded a total amount of almost €14,000.00 from a customer with a D2-Fun tariff. These high costs were allegedly incurred through the use of so-called value-added services. However, the defendant substantially disputed the use of these value-added services. The plaintiff, on the other hand, argued that there was prima facie evidence for the correctness of the disputed telephone bills. There were no indications of a technical failure of the automatic electronic charge recording system, nor had the defendant alleged any.
However, the Augsburg Regional Court rejected this legal opinion of the plaintiff.
The Regional Court explicitly stated that it was the plaintiff's responsibility to substantiate and, if disputed, to prove that the respective contract with the specific provider of the value-added services, from which the claim is derived, had been concluded (Schleswig-Holstein Higher Regional Court, decision of April 19, 2006, file number 3 W 28/06).
The defendant had raised objections to the correctness of the claim within the 80-day period stipulated in § 7 para. 3 TDSV (Telecommunications Service Provider Data Protection Ordinance). The defendant argued that he had not dialed the respective connections himself and explicitly stated which phone calls he had not made. Furthermore, the plaintiff was requested by the defendant to immediately provide the full names and addresses of the operators of the respective value-added services. However, the plaintiff failed to comply with this request.
The Augsburg Regional Court, like the Stendal Regional Court in its judgment of august 18, 2005, file number 22 S 51/05, held the view that a telecommunications company claiming payment for so-called value-added services must present the customer with a telephone bill that enables them to dispute the content of the bill in a qualified manner (similarly, Trier Regional Court, judgment of July 6, 2004, file number 1 S 104/04). However, the plaintiff had failed to do so. Without fulfilling its burden of substantiation and proof for the correctness of the telephone bills, the plaintiff did not address the defendant's substantiated objections. The plaintiff thus failed to prove that the value-added services billed by it were actually utilized by the defendant.
According to the Augsburg Regional Court, based on the defendant's objections, it was plausible that he had fallen victim to unnoticed connection establishments through clandestine third-party manipulations. The legal principle of § 16 para. 1 TKV (Telecommunications Customer Ordinance) implies that the risk of unnoticed connection establishments should not be borne by the subscriber (cf. BGHZ 158, 201-212). Furthermore, the Augsburg Regional Court argued that, according to the plaintiff's billing, the defendant must have made calls almost without interruption on several days. From this circumstance, the Augsburg Regional Court concluded that there was an appearance that not all of these phone calls could have been made knowingly and intentionally by the defendant.
Since the plaintiff failed to comply with its burden of substantiation and proof and could not demonstrate that the defendant had knowingly and intentionally utilized the value-added services billed by the plaintiff, the Augsburg Regional Court dismissed the plaintiff's action for payment.
This judgment once again strengthens the rights of all mobile phone users. It is now incumbent upon the mobile network operator to prove that all billed mobile phone calls were indeed made knowingly and intentionally by the mobile phone user. If a mobile network operator fails to comply with this obligation, it cannot successfully assert any payment claims against the mobile phone user.
Should you require legal advice on the aforementioned topic or other areas of intellectual property law, IT law, or other fields of civil law, Goldberg Attorneys-at-Law are at your disposal. Of course, you can also contact us via email atinfo@goldberg.de .
Communicated by Attorney at Law Michael Ullrich, LL.M. (Information Law)
© Goldberg Attorneys at Law Wuppertal-Solingen 2007
