New judgments of the Federal Court of Justice (BGH):
Internet connection: Provider liable for compensation of pecuniary loss
If an Internet connection is not made available, or if it fails, the customer is generally entitled to
Claims for damages
to. This already results from a new ruling of the Federal Court of Justice in the case of purely private connections (BGH, ruling of 24 January 2013 – III ZR 98/12). The guiding principle is as follows with regard to a case in which loss of use occurred on the occasion of a change of tariff by a private customer:
“It may constitute compensable pecuniary loss if the owner of a DSL connection is deprived of the opportunity to use his access to the Internet without incurring additional expenses or losing revenue as a result.”
In the case of business connections, the obligation to pay damages goes even further, because not only additional costs, for example for mobile phone use instead of fixed network, come into question, but also because of damages in the professional area due to the failure of DSL connection, fixed network telephone connection and fax possibility.
This does not only include the compensation for damages in case of missing possibility of use (BGH NJW 1992, 1500; judgement of 21.02.1992 – V ZR 268/90). Rather, the costs of one’s own labour (NJW 1989, 3246 et seq.) in connection with ascertaining the damage, reporting the fault and following up on the rectification of the damage may also constitute compensable damage in the event of a breach of duty. In the event of culpable breaches of duty, the obligation to pay compensation shall also include the costs of technicians or experts commissioned, as well as the costs in connection with the futile use of employees’ time in the case of self-employed persons or tradesmen.
Also conceivable in individual cases is compensation for loss of profit according to § 252 BGB. Occasionally, a liability to pay compensation due to intentional immoral damage according to § 826 BGB (German Civil Code) comes into question, for example if a breach of duty is recognisably intentional: The intent of the acting persons, i.e. the intention, does not have to refer to the damage caused.
In practice, cases are also typical in which the move to a new provider is obstructed, or in which customers of certain DSL providers are discriminated against by individual technicians on site during the new connection or during fault clearance.
For example, someone who is professionally dependent on his or her connection can also enforce the connection by Telekom within 24 hours by means of an interim injunction – under threat of an administrative fine of up to 250,000 euros and, as a substitute, up to six months’ imprisonment – even if it is a completely different provider. This was decided on 20.02.3013 by the AG Lüneburg (Az. 53 C 22/13).
In its ruling of 07.03.2013 (Ref. III ZR 231/12), the Federal Court of Justice (BGH) clarified that non-availability for several weeks, for example when changing providers, entitles the customer to terminate the contract without notice. For this purpose, the customer must set his supplier a reasonable deadline to remedy the defect, §§ 314 III, 626 II BGB. Setting too short a time limit would set a reasonable time limit in motion. If the set or reasonable deadline expires without result, the customer can terminate the contract without notice because he has not received a crucial service from the DSL provider.
