Consumer Law

Certified lawyer Julian Modi, LL.M. has reached the decision in the Local Court Dachau on August 16, 2011, ref.: 2 C 1423/11, which has been published as the decision of the week in the legal magazine NJW – issue 42/2011.

Decorating the own profile with photos, text and YouTube videos is something that happens every day on Favebook. The problem appears when the copyrights are not own by the facebook user who has just copied the internet contents. Even when a user is in principle owner of the rights and according to the terms of use, facebook is allowed to use the contents to a large extend. Lawyer Hagen Hild, certified lawyer in IT Law and in Protection of Industrial Property has been interviewed by FOCUS Online about that topic.

PayPal blocks against the sales within Kuba, Zalando obliges frequently returning buyers to pay in advance. Chip interviews lawyer Hagen Hild, certified lawyer in IT Law and in Protection of Industrial Property about that topic.

In case that a WLAN is unencrypted, uninvited surfing the web cannot be avoided. The unobstructed access invites to use the open Wi-Fi. This surfing is legal and does not constitute a criminal offence, as long as it is confined to the mere surfing the Internet. However, it should be morally denunciated since whom secretly sneak, scrounges. However, in case of scrounging there is an important risk of unwanted guest such as viruses of malicious software.

The Member States hat time until January 20, 2011 to implement the new directive 2009/48/EC of the European Parliament and of the Council on the safety of toys – these implementing regulations should be applied from July 20, 2011. We have compiled for you the important innovations mentioned in the toys directive and also in the second regulation of the equipment and product security law and which should be followed by manufactures and online sellers.

Judgement of EuGH (European Court of Justice) of 16/06/2011, file number: C-65/09, C-87/09

In case that the consumer assembles a defective item in good faith in the efficiency for its intended purposes, the seller has to bear with the removal costs of the defective item and the costs of the installation of the replacement item as part of his guarantee obligation. In case that the caused costs have no relation to the value of a free of defects item, the liability of the seller may be limited to a reasonable amount.

According to the recently published police criminal statistics of the year 2010, the number of the recorded crimes regarding computer and Internet criminality has continued to grow strongly. 60.000 cases have been known last year, 20 percent more than a year before. The estimated high number of unknown and not registered crimes should not be underestimated. The increasing number of criminals feel safe from the law within the supposedly anonymous “legal vacuum” Internet.

Judgement of LG Darmstadt (Regional Court Darmstadt) of 06/04/2011, file number: 25 S 162/10

Following clause of the terms and conditions “The special price is only valid with full payment at the shipping and billing date. In case of late or incomplete payment, the special price is not longer valid” has been declared invalid by the Regional Court Darmstadt. First, the term “billing” is too vague. For the customer is not clear whether this date refers to the invoice date or to the delivery date. Additionally, the statutory right of retention of the customer is so limited through the clause that an exclusion of the...

Judgement of the OLG Stuttgart (Higher Regional Court Stuttgart) of 11/11/2010, file number: 2 U 29/10

Consumers who provide their telephone number in a lottery do not automatically consent to telemarketing calls. In case that that consent is separately asked does not change anything since it cannot be assumed that the participant signs up with his real name. According to this, there is no effective consent. The burden of proof for the evidence that the participant of the lottery has given his real name shall be carried by the one who performs the marketing call. Shifting of the burden of proof would only happen in case that the data is not freely...

Judgement OLG Hamm (Higher Regional Hamm) of 01/02/2011, file number: I-4 U 196/10

Online shops operators have to specify on their website the delivery costs to each supplying country. An indication on the website stating that the customer will be notified on request about the actual shipping prices is not enough.

Judgement OLG Köln (Higher Regional Court Cologne) of 02/03/2011, file number: 6 U 165/10

A clause in the general terms and conditions of a parcel and postal service provider, which allows an alternative delivery is not admissible without the inclusion of a commitment, which assures that the addressee will be informed about the alternative delivery.

Press release of BGH (Supreme Court) No. 31/2011 about the judgement dated 17/02/2011, file number: III ZR 35/10

The clause on the general terms and conditions of a mobile operator stating that the SIM card will be blocked as soon as the customer has an outstanding payment of € 15.50, disadvantages the customer in an inappropriate manner. According to the legal regulation regarding the fixed network connection (§ 45k para. 1 TKG – German Telecommunication Act) a SIM card should not be blocked before the customer has an outstanding payment of over € 75.

Judgement of LG Münster (Regional Court Münster) of 18/01/2011, file number: 06 S 93/10

A cell phone service provider must inform the customer about the risk of the high costs, which may occur using the WAP and Internet connections with his cell phone and about the benefits of using a flat rate. This is especially important when the cell phone has already navigation software that enables significant volume traffic.

Judgement of BGH (Supreme Court) of 13/01/2011, file number: III ZR 78/10

If a vehicle owner commissioned a car dealer for a commission with the sale of his vehicle, he must not pay an additional fee for the allocation and advertising of the vehicle. A contractual agreement to that effect is invalid, since it disadvantages the contractor unreasonably. He does not receive anything in return, the expenses for the successful presentation serve the interest of the dealer to come quickly to mediation and these are already included in the commission.

Judgement of LG Köln (Regional Court Köln) of 28/10/2010, file number: 31 O 76/10

Clients of “Germanwings” will no longer be discouraged by complicated and difficult to understand claims forms regarding the reimbursement of the already paid taxes and airport charges. The consumer was prejudiced through the handwriting filling and the demand to submit detailed, often redundant, information concerning the restitutory right.

Judgement of OLG Hamm (Higher Regional Court Hamm) of 30/11/2010, file number: I-4 U 88/10

It is illegal to advertise with the effect of food that does not join the current scientific knowledge or which proof is not scientifically provided. Thus, the advertising of capsules that are supposedly “fat-eaters” stimulating the body’s own slimming hormone without providing any study proof is misleading. In particular, consumers who suffer from their obesity are often less critical to new products being advertised and therefore more vulnerable than other consumers.

Judgement of the LG Hamburg (Regional Court Hamburg) of 02/09/2010, file number: 416 O 78/10

Service station operators are not allowed to sell any alcoholic drinks to minors. To prove such an infringement of the competition law, a minor is permitted to act as an underage test buyer provided that the minor purchases the alcohol only for the purposes of the test purchase and not for the own consumption.

Judgement of BGH (Supreme Court) of 20/05/2010, file number: Xa ZR 68/09

a) Following clause, found in the general terms and conditions of an airline, which offers its services almost exclusively as distant sales, has been reviewed:

“Since security and administrative costs have increased, Ryanair will not accept any cash payments for the tickets, fees and costs for the excess luggage and sport equipment.”

b)  Following clause of the general terms and conditions of a company of that kind disadvantages the passenger inappropriately, contrary to the principle of equity and good faith and is, therefore, invalid:

"(1) credit card fee per...

Judgement of OLG Hamm (Higher Regional Court Hamm) of 04/05/2010, file number: 4 U 32/10

The advertising of a company with the words "Online orders will be delivered free of charge within Germany and Austria” is inadmissible and therefore misleading since the consumer is not informed that extra costs will be charges in case that that the order amounts less than 50 euro net. The customer is thus misled concerning the end price to be paid.

The computer magazine CHIP recently published our large terms and conditions test, in which lawyer Hagen Hild (Terms and Conditions Law) and lawyer Martin Bachmann (Privacy Policy) examined dozens of terms of use, licence agreements and privacy policies of the major providers such as Microsoft, Google and Facebook. This study has now been mentioned in the FOCUS magazine.