27 September 2002

Jan-Peter Ohrtmann

Improvement of Consumer Rights in Relation to Unrestricted Advertising by Electronic or Telecommunication Means

On 31 July 2002, the German Government adopted an Order amending the Telecommunications Consumer Protection Order (Telekommunikations-Kundenschutzverordnung (TKV)). TKV was adopted with a view to improving consumer rights in relation to unsolicited electronic communication and the use of autodialers. To this effect, S. 13 a) TKV has extended the liability of communication network providers. The communication network provider from now on will be committed among other things to sending a letter urging the communication network provider to cease the activity, and even to blocking premium rate numbers that he supplies for facsimile, e-mail SMS or voice services if he has secured knowledge that these numbers are used repeatedly or materially illegally. TVK also includes an obligation on the issuer to produce an invoice pointing out to the recipients the fact that they may raise complaints in relation to single items of the bill (S. 15 para. 3 TKV).

Decision confirming the high standard in information obligations in B2C e-commerce

In a legally binding decision of 27 March 2002, the Court of Appeal in Karlsruhe confirmed that the standard of information provision obligations in the context of e-commerce under German law should be high. S. 312c, 312d German Civil Code and S. 1 para. 1 No. 1-3 Civil Code Informations Order provide that the consumer has to be informed about the identity and address of the supplier as well as the basic characteristics of the subject matter of the contract. The Court decided that it was insufficient for this information to be supplied under a link labelled "AGB" (which is the abbreviation for general terms and conditions) and a link labelled "Kontakt" (“Contact”) with a sublink named "Impressum" (masthead). The Court of Appeal argued that the consumer could not know that the supplier is only an intermediary when the supplier uses such link names. The consumer must be able to identify his contractual partner easily without having to check the general terms and conditions. It also held that the word "Kontakt" was misleading because the consumer expected to be able to send an e-mail to the supplier when this is not the case and that the term "Impressum" was misleading as well. This decision confirms that legal information provisions are still not taken into consideration seriously enough in practice. E-commerce suppliers are only slowly adjusting to this legislation/jurisdiction.

Federal Council heads at extending the obligation of storage of communication data on a precautionary basis

The Federal Council of Germany made a proposal on 31 May 2002, to incorporate in the Telecommunications Act (Telekommunikationsgesetz) and the Electronic Communication Data Protection Act (Teledienstedatenschutzgesetz) an authorisation for the government to define obligations for telecommunications and Internet suppliers to store connection and communication data. This would lead to significant additional costs for suppliers of telecommunications and Internet services. Companies which allow their employees to access the telephone or Internet for private purposes would also become subject to this obligation.