Internet disruption allows for damages
 
The remarkable BGH ruling has elevated Internet access to an asset on whose material availability we are typically dependent on a daily basis to execute our daily life autonomously. A notable representative of such renown has been German´s most holy asset of conveyance - the car.  The broad legal consequence is that the simple fact of being deprived of one´s car (admittedly now a cycle could do as well) following an accident, for example, is considered a compensable damage. This is to say, in addition to the costs for repairing the car as such, the “loss of usage” of the same is to be compensated for. As a counter example, if on this hapless day in your holidays you were on the way to the beach (take the Ostsee for the sake of applicability of German law) and the surf board that you carried along in your car would have been damaged, the loss to use the surfboard, however disrupting to you personally, would not merit such compensation.
 
Now in the case in front of the BGH the service provider caused an internet disruption of nearly two months as a byproduct of a tariff adjustment. The plaintiff used to fax and call voice over IP via his DSL connection. The plaintiff sued the old service provider after ultimately switching to a new one.  Besides the costs which the new provider charged more than the old one and costs for using his mobile phone during the time of disruption, the plaintiff demanded additional damages for “loss of usage” of being unable to phone, fax, and surf the internet. The amount he asked for: 50, 00 € daily.
While the lower courts granted the plaintiff an amount of 457,50 € covering the higher than previous fee of the new service provider as well as mobile phone charges for the affected period of time, they rejected his bid for additional compensation.

So, whose availability do we significantly and centrally depend on to function on a daily basis?

With respect to the loss of being able to fax the BGH dismissed a claim for damages. Faxing just allows for sending texts or images quicker and faster than by conventional post. No real loss here all the more since this kind of communication is now predominantly catered for by email.

With respect to the loss of using his landline phone availability the BGH rejected a claim for damages as well. The BGH acknowledged, however, that the loss of using one´s landline connection does indeed cut into an asset whose availability on a daily basis is of central importance. Still, a claim in such instances can fall flat all the same if the aggrieved party has an alternative resource at hand to make up for this loss: This was literally the case here. The plaintiff used his mobile phone whose expenses he got recompensed for the time in question.

Finally, internet access: The BGH extolled the virtues of the internet and its role in the daily life of almost every person replacing traditional media: worldwide access to information in all kinds of data forms (text, pictures, video and audio streams) and all kinds of areas (news, entertainment, science, etc.). Not to mention blogs, forums, emails, and social networks and the large number of contracts and other legally relevant communication which makes internet access an indispensable commodity for daily existence. With regard to the amount of damages, the BGH remanded the case back. The BGH hinted that the amount should reflect average expenses necessary to get access to a normal DSL connection without phone and fax services and adjusted for profit margins.

BGH (Federal Civil Court), dated. 24. 1. 2013 – III ZR 98/12


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