The first civil senate of the Federal Court of Justice, which is responsible The I. Civil Senate of the Federal Court of Justice, which is responsible for claims under the Unfair Competition Act, ruled on 25.04.2019, that the activation of a second WLAN signal on the service provider made available to its customers, which is used by third WLAN router provided by a telecommunications service provider to its customers, which can be used by third parties, is if the customers have the right to object to the activation of the second signal does not impair their Internet access and there are no other disadvantages, in particular no disadvantages, in particular no security and liability risks or additional costs. entails.
Facts:
The defendant offers telecommunications services. It provides customers of its internet connection services a WLAN router free of charge on request. WLAN router, which is secured against unauthorised access by third parties by means of a access by third parties by means of password-protected encryption. The router remains the property of the defendant. At the beginning of 2016, the defendant informed its customers that it would change the configuration of the WLAN routers in order to configuration of the WLAN routers so that a separate WLAN signal would be activated. signal would be activated, which would allow third parties to access the internet. The applicant, a qualified entity according to § 8 para. 3 no. 3 UWG, sees in this unsolicited installation of a Wi-Fi spot among consumers constitutes an unreasonable harassment and an aggressive business practice.
Process history so far:
The plaintiff demands that the defendant cease and desist from activating the the activation of the separate WLAN signal, if this has not been contractually consumers and they have not given their consent. The Regional Court sentenced the defendant as requested. The defendant's appeal against this The defendant's appeal was successful and led to the dismissal of the action. The Court of Appeal held that the activation of an additional signal did not did not impair the contractual performance owed. A possible nuisance caused by the unilateral activation of the second WLAN signal was in any case unreasonable because the customers could object to this at any time - even subsequently. - at any time - even retrospectively. There was no aggressive business practice.
Decision of the Federal Supreme Court:
The Federal Supreme Court dismissed the plaintiff's appeal.
No harassment
The activation of the second WLAN signal does not constitute a nuisance within the meaning of within the meaning of § 7 para. 1 sentence 1 UWG. The contractual service owed - access to the access to the internet - is not impaired by the second WLAN signal. A exclusive right of use of the routers owned by the defendant by the routers owned by the defendant, which could also prevent the defendant from using the use of the routers by the defendant as well, is not provided for in the provide for. The undisturbed use of the router by the customers is neither precluded by the by the activation of the second WLAN signal or by its operation. impaired.
No service
Contrary to the opinion of the Court of Appeal, the activation of the second WLAN signal of the Court of Appeal does not constitute an imposed service. The defendant opens up customers with the activation of a second WiFi signal on their routers. routers, the defendant offers its customers the possibility of using the services of the of other customers. However, the plaintiff does not want the defendant to offer this additional offer of this additional service, but only the activation of the second second WLAN signal. The activation of this signal does not not in itself a service provided by the defendant to the owner of the router. router.
No disadvantages for customers
Also otherwise there is no indication that the activation of the signal constitutes a nuisance within the meaning of § 7 para. 1 sentence 1 UWG. constitutes. The activation is an exclusively technical process which, according to the which, according to the findings of the Court of Appeal, does not entail any disadvantages for the customers. disadvantages for the customers. It requires neither a visit to the customer's premises associated with disturbance customers or their cooperation. The customers' internet access is not affected by the by the activation of the second WLAN signal. Indications for security of the customers or additional costs caused by the extended use of the router. the extended use of the router at the expense of the customers. found no evidence. For the customers, there is also no risk of being held responsible third parties via the second WLAN signal. liable.
Objection sufficient
Finally, the unlimited right to object speaks against harassment within the meaning of § 7 para. 1 sentence 1 UWG. Finally, the customers' unrestricted right to object. They the use of the routers made available to them by third parties via an additional additional WLAN signal operated by the defendant at any time by means of an by objecting at short notice - at the latest on the next but one working day.
No unreasonableness
Even if the activation of the second WLAN signal were to constitute a nuisance, the unreasonableness of the nuisance would be lacking. Legally interests of the customers are not violated in the course of activating the second WLAN signal are not violated. The right to object at any time also speaks against the unreasonableness of a nuisance. the customers' right to object at any time. The activation of the second WLAN signal is also not in conflict with the right of objection regulated in § 7 para. 2 no. 3 UWG. and only permissible with the prior express consent of the addressee. addressee's prior express consent, because it does not lead to similar impairments. leads.
No aggressive business practice
An aggressive commercial practice within the meaning of Section 4a (1) UWG does not exist, if only because the customers have an unrestricted right to object and their freedom of choice is therefore not impaired.
Lower courts:
Cologne Regional Court - Judgment of 9 May 2017 - 31 O 227/16 - MMR 2017, 711
OLG Cologne - Judgment of 2 February 2018 - 6 U 85/17 - WRP 2018, 498
Judgment of the Federal Supreme Court of 25 April 2019 - I ZR 23/18
Source: Press release of the Federal Supreme Court of 25.04.2016
GoldbergUllrich Attorneys at Law 2019
Lawyer Michael Ullrich, LL.M. (Information Law), Specialist Lawyer for Information Technology Law
