Higher Regional Court of Frankfurt am Main, 02.10.2014, Case No.: 6 U 219/13
Please note: The TMG (Telemedia Act) has been replaced by the DDG (Digital Services Act). However, the decision is likely still relevant in content. You can find an overview here. Please note: The TMG has been replaced by the DDG, but the decision likely remains relevant. An overview can be found here.
Anyone operating their own website (shop, blog, portal, or simple advertising page) or offering anything online (e.g., on an online portal) must provide the information required by the Telemedia Act on their website.
According to § 5 (1) No. 2 TMG, this includes information that enables quick electronic contact and direct communication with the website operator, including the email address.
The ruling discussed here by the Higher Regional Court of Frankfurt am Main addressed whether the inclusion of a costly premium service number in the website’s legal notice (imprint) as a contact number complies with the requirements of § 5 TMG.
You can create a personalized and free imprint using our imprint generator.
Facts of the Case:
This legal dispute involved two operators of online retail platforms that offered a variety of products, including bicycle trailers.
The defendant marketed its products, among other platforms, on a website with the domain [Example Domain]. On this site, the defendant provided its name, legal form, address, and the authorized representative in the imprint. Additionally, a premium service number was provided, costing 49 cents per minute from a landline and up to €2.99 per minute from a mobile network. In the „Contact“ section, the defendant referred to this number and an email address; however, there was no contact form available. Instead, users were redirected to their email program.
The plaintiff argued that the defendant had violated its obligation to provide a proper imprint.
Dispute over the Imprint Obligation
The plaintiff claimed that, according to the law, the service provider must offer, in addition to an email address, another fast and efficient means of communication. A premium service number does not meet these requirements because the high costs could deter users from making contact. Therefore, the number was not suitable to meet the legal requirement for fast and direct communication.
District Court Ruling
The District Court sided with the plaintiff. It ordered the defendant to refrain from using a premium service number in the imprint for future business activities. The court explained that a premium service number, especially when the costs are at the upper limit of what is allowed under § 66d of the Telecommunications Act (TKG), does not allow for efficient communication. Consumers have a legitimate interest in not being burdened with high costs when trying to contact the company by phone.
Appeal at the Higher Regional Court of Frankfurt am Main
The defendant appealed the decision, but the Higher Regional Court of Frankfurt am Main upheld the District Court’s ruling. The plaintiff’s claim for an injunction arose from §§ 8, 4 No. 11, 5a of the Act Against Unfair Competition (UWG) in conjunction with § 5 TMG.
According to the Higher Regional Court, the imprint must enable fast and direct communication. Although it is not mandatory to provide a phone number, if one is given, the costs involved must not create a barrier to communication. By using the expensive premium service number, the defendant had violated these provisions.
Efficiency and Cost-Effectiveness of Communication
The Higher Regional Court emphasized that „efficiency“ in the context of the E-Commerce Directive means both effectiveness and cost-efficiency. An expensive phone number poses a significant hurdle for many consumers and could deter them from making contact. The court found that the costs demanded by the defendant reached the permissible limits and therefore did not meet the requirements of efficient communication.
Violation of Imprint Obligations and Unfair Competition
The violation of the imprint obligation constitutes a breach of competition law. The defendant’s argument that the cost cap had not been exceeded was rejected by the court. The high costs of up to €2.99 per minute could deter many consumers and were therefore not suitable for enabling efficient contact.
Additionally, the defendant’s behavior was deemed unfair under § 5a UWG, as essential information required under EU law was withheld from the consumer.
Conclusion
The courts ruled that by providing the premium service number in the imprint, the defendant had violated the legal obligation to provide an efficient means of communication. This not only constituted a breach of the imprint obligation but also a violation of competition law, leading to the plaintiff’s successful claim for an injunction.
You can create a personalized and free imprint using our imprint generator.
Source: Higher Regional Court of Frankfurt am Main
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