Online service providers do not need to provide a consumer telephone hotline

03 December 2008

Jan Dirk Roggenkamp

In Germany it has been unclear whether the E-Commerce Directive requires a telephone hotline to be made available to consumers, or whether it is sufficient to only have an email address that consumers can use to contact a company. The German Federal High Court referred this question to the European Court of Justice. The European Court held that a telephone number was not necessary, but that a second means of communication, such as a pro-forma template, was required.

The problem

In Germany the question of whether a consumer hotline is required has been greatly contested and has caused a multitude of diverging judgments. The debate surrounds the question of whether a service provider and, particularly, a provider of e-commerce services, should provide a telephone number to allow customers to communicate directly with them. The Regional Appeal Court of Oldenburg, for example, considered that providing an e-mail address was not sufficient to comply with the requirements of Section 5 of the German Telemedia Act which is based on Article 5 (1) (c) of the E-Commerce Directive. The consequence of this was that, as the company had failed to provide a telephone number, there was a substantial violation of the German Act against Unfair Competition. However, on the other hand the Regional Appeal Court of Hamm ruled that a telephone hotline was not required.

The decision

The Hamm was taken to the Federal High Court, which referred the question to the European Court of Justice. In May 2008 Advocate General Dámaso Ruiz-Jarabo Colomer concluded that Article 5 (1) (c) of the E-Commerce Directive does not require a service provider to provide a telephone number. On 16 October, 2008 the ECJ (Case C-298/07) followed this view.

It held, however, that the E-Commerce Directive required the provision of a second means of communication in addition to the e-mail address, such as an enquiry template which is responded to promptly by e-mail (within a period of 30 to 60 minutes).

The ECJ also held that "in exceptional circumstances where a recipient of the service, after making contact by electronic means with the service provider, is, for various reasons, such as a journey, holiday or a business trip, deprived of access to the electronic network, communication by an enquiry template can no longer be regarded as effective within the meaning of Article 5(1)(c) of the Directive". In those circumstances the service provider must provide the recipient (upon request) with access to a "non-electronic means of communication" in order to comply with the provisions of the E-Commerce-Directive.

Evaluation and practical effect

The clarification that the provision of a telephone number is not necessary if a web based enquiry template is available, provides welcome legal certainty for the e-commerce sector. However, the decision opens a new field of uncertainty. The ECJ failed to explain how the recipient of the service should request a telephone number from the service provider. A practical approach would be to assume that electronic access (e.g. in an internet café) is available and that the request for a telephone number can be made via the enquiry template. This request however has to be answered within 30 to 60 minutes. It may be necessary to provide a call-back service, so that a customer without an e-mail address is able to communicate with the service provider in a direct and effective manner.

Should no enquiry template exist, the provision of a telephone number is mandatory and a failure to provide it is a breach of consumer protection law.