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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.
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.
With the growing number of Smartphone users is also increasing the interest from companies to remain present in the mobile business. Applications for mobile phones - so-called apps - are already an important economic factor, which should not be underestimated. Through these apps, it is possible more than order rail tickets through mobile phones, full web pages are optimized for Smart phones including complete ordering processes. As in ecommerce, numerous statutory duties must be considered by those companies.
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.
Press release of the VG Köln (Administrative Court Cologne) of 14/02/2011, file number: 1 L 1908/10
The deactivation by the Federal Network Agency of an information service that offered, on private request, information and dial switching charging € 1.99 per minute and which price announcement lasts 1:47 minutes, is legitimated. Unacceptable high costs are generated to the caller resulting to the long price announcement. Such an announcement should be much shorter.
Press release of the Federal Network Agency dated 30/06/2010
Only a month ago, the European Court has decided that the regulation 717/2007 of the European Parliament about the regulation of roaming fees in other European countries, is legal. Since 1st July 2010, the roaming costs for mobile calls have been again reduced. Consumers pay a maximum of 39 cent/minute for outgoing calls in other EU country, a maximum of 15 cent/minute for incoming calls and not more than 11 cent for text messages (all prices excl. VAT).
Judgement of AG Berlin-Mitte (Local Court Berlin) of 12/01/2010, file number: 14 C 1016/09
Provides a mobile service to its users the possibility to register the cell number in order to apply for offered services and a confirmation short message follows after mentioned application, this SMS cannot be considered as a junk mail. The SMS has no sales promotion purpose but fulfils the information duty.
Interview dated February 22, 2010 with lawyer Hagen Hild about the topic: "1&1: Questionable data clause by online order".
Decision of the BVerfG (Federal Constitutional Court) of 24/09/2009, file numbers: 1 BvR 1231/04, 1 BvR 710/05, 1 BvR 1184/08
According to § 184 d StGB (Penal Code), suppliers of pornographic contents are responsible for ensuring through technical precautions that the pornographic content is not accessible for people under 18s. The age verification obligation is not inapplicable to protect minors against the negative influence of pornographic contents since these are freely available on the internet. A law is already adequate to reach the aimed purpose when the reaching purpose is promoted.
Decision of OLG Schleswig-Holstein (Higher Regional Court Schleswig-Holstein) of 14/05/2009, file number: 6 U 41/08
A terms and conditions clause which enables a mobile phone provider to change clauses before the contract period expires is ineffective. Moreover, also an inadmissible clause is the one which allows the provider to block the connection, immediately and without previous notice, in case of default. Terms and conditions should not cause disproportionate disadvantages for the customers.
Judgement of OLG Hamm (HRC Hamm) of 13/11/2008, file number: 4 U 150/08
If a company arranges a fax number, i.a. for the customer's contact and publishes on own homepage, no approval can be understood for the sending of advertisement by fax. Rather, strict demands should be made for the presentation of such an approval, this approval must be given before sending the concerning fax and just for the concrete case. Otherwise this kind of advertisement means an unfair competition misfeasance.
Press release of OVG Nordrhein-Westfalen (Higher Administrative Court Nordrhein-Westfalen) of 30/06/2009, file number: 13 A 2969/07
The higher administrative court has decided in a current judgment that the cancellation of the UMTS licence auctioned by the Quam GmbH (plaintiff) in summer 2000 is lawful, since the Quam GmbH has not fulfilled the conditions engaged in the buying at an auction. For this reason, they cannot demand the surcharge price of approx. 8.5 milliard euros back.
Judgement of EuGH (European Court of Justice) of 04/06/2009, file number: C-8/08
A single meeting between competitors may constitute a concerted practice in breach of antitrust law, also if there is no actual prevention, restriction or distortion of competition. A concerted practice pursues an anti competitive object for the purposes of Article 81(1) EC where, according to its content and objectives and having regard to its legal and economic context, it is capable in an individual case of resulting in the prevention, restriction or distortion of competition within the common market.
EU press release of 01/07/2009, IP/09/1064
New EU roaming rules coming into effect this month, should cut roaming charges for EU consumers by 60% and increase mobile phone use. From now on, sending a text message from abroad in the EU costs a maximum €0.11. Roaming calls will be also cheaper: Outgoing roaming calls will not cost more than €0.43 per minute, and incoming calls will not cost more than €0.19.
Judgement of OLG Brandenburg (HRC Brandenburg) of 30/04/2009, file number: 12 U 196/08
Listening of telephone calls by thirds, without the interlocutor knowing about it, hearing of the thirds as witnesses and the exploitation of the statement injure the constitutional-juridical guaranteed right to own spoken word as a part of the personal right. The protection is cancelled if undesirable listeners are overlooked in immediate nearness or the volume is wrong estimated. If the witness states, however, alone about the listened words of the caller, the rights of the called are not injured.
Judgement of LG Bonn (Regional Court Bonn) of 08/05/2009, file number: 10 O 395/08
In the conclusion of a mobile contract, the customer shall make clear his interest in different rate models for Internet use on the mobile phone. In case of excessive use and thereby high expenses, he cannot appeal to wrong consultation and refuse the payments. The mobile phone provider does not have any duty to inform about the price models and option in which the customer has not shown any recognizable interest during the contract conclusion.
Judgement of BGH (Federal Supreme Court) of 05/11/2008, file number: I ZR 5/06
If the sales of a mobile phone are promoted together with a prepaid card including a fix start credit, there is no obligation to state the rates for the use of the card, but the package price regarding the mobile phone and the prepaid card. If the mobile phone is locked with a SIM, the durability of the locking and the expenses in case of a premature connection should be made known.
Judgement of LG Köln (Regional Court Cologne) of 25/09/2008, file number: 84 O 15/08
The advertisement of a telecommunication supplier, that it offers itself as the fastest DSL connection in the federal territory is unfair according to §§3, 5, 8 UWG (fair trade law), it is misleading for the general consumer.
Judgement of BAG (Labour Court) of 20/01/2009, file number: 1 AZR 515/08
A rate-responsible trade union is allowed to send advertisement and information to employees to their official e-mail address, even if the employer has prohibited its private use.
