Berlin Court of Appeal, May 7, 2013, Case No.: 5 U 32/12
Please note: The TMG has been replaced by the DDG, and the content of this article is up to date. 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 Please note: The TMG has been replaced by the DDG, but the decision likely remains relevant.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.
Already in its judgment of September 19, 2007 (Case No.: 44 O 79/07), the Regional Court of Essen ruled that merely providing a contact form in the legal notice of a website does not meet the requirements of Section 5 (1) No. 2 of the Telemedia Act (TMG).
The Regional Court of Essen justified this by stating that the provision does not require (only) technical devices that factually establish a connection, but rather „details“ that allow for quick electronic communication via electronic mail.
The aforementioned ruling of the Berlin Court of Appeal on May 7, 2013, had to address the same issue once again.
Facts of the Case:
An airline did not provide an email address on its website.
An Irish airline did not provide an email address for quick contact in the legal notice of the German-language section of its website.
The airline argued that its previously listed postal address, fax number, and several phone numbers under the „Contact“ section already met the requirements of Section 5 (1) No. 2 of the TMG.
The airline argued that the other contact methods were sufficient
The airline argued that this information allowed users of the telemedia service to contact the company in a comparable manner that was just as quick, direct, and efficient as if an email address had been provided.
It also argued that, given the company’s 70 million annual passengers and 99.8% online bookings, providing an email address would lead to an overwhelming number of emails that would be difficult to process, not to mention the issue of spam emails.
Decision of the Berlin Higher Regional Court:
The Court saw it differently and found the lack of an email address to be a violation.
The Berlin Court of Appeal did not follow this argument and particularly rejected the airline’s claim that providing a fax number, phone number, or a contact form was equivalent to offering an email address:
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- The Court held that using a fax number constitutes a media disruption. Every internet user can send an email, but not every user has access to a fax machine or a fax number. The same applies to phone numbers;
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- although a phone conversation may offer immediate and efficient communication, it leaves no tangible record. A contact form is also not equivalent to an email address. Otherwise, consumers would be forced into using a form predetermined by the business, which does not have the same features as an email.
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Source: Berlin Higher Regional Court
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