”Expensive” service number in website’s imprint violates German Teleservices Act

On 2 October 2014 the Higher Regional Court of Frankfurt (OLG Frankfurt) ruled that a service provider violates Sec. 4 (11) of the German Unfair Competition Act (UWG) in conjunction with Sec. 5 (1) (no. 2) of the German Teleservices Act (TMG) by providing in its imprint a service number that generates costs up to 2.99 Euros per minute.

In the underlying case the plaintiff and the defendant each conducted an e-commerce business. The defendant provided a service number on its website that generated costs of 0.49 Euros per minute when calling from a landline and 2.99 Euros per minute when calling from a mobile phone.

The OLG Frankfurt decided that providing a service number that causes the abovementioned costs cannot be considered offering an efficient channel of communication to the users as is required under Sec. 5 (1) (no. 2) TMG. The court pointed out that the word ”efficiency” has to be interpreted not only as effectiveness, but also as economic efficiency. It further held that the costs in question could be a significant barrier for the users to contact the service provider.

Hence the action of the plaintiff was successful. The court, however, permitted an appeal to the Federal Court of Justice (BGH) arguing that the question of whether the obligation of offering an efficient channel of communication in the sense of Sec. 5 (1) (no. 2) TMG may be satisfied by providing a paid service number has not yet been decided by the BGH and that the questions is discussed controversially among legal scholars. It remains to be seen whether the BGH will reach the same conclusion as the court of Frankfurt.