In the first case regarding the new E-commerce Act, the first defendant advertised telephone hotlines and services under the domain 'www.sexhotphones.at', while the second defendant was the web host that stored the information. The plaintiff, which offered chargeable telephone services, called for the defendants to cease and desist from publishing information on the Internet that did not include contractual terms and conditions.
The Supreme Court ruled that if a website merely advertises a product or service, and no contract can be concluded through it, then the service provider need not make contractual terms and conditions available in accordance with Section 11 of the E-commerce Act.(1) The court reasoned that Section 11 - as part of Chapter 4 of the act, which is entitled 'Conclusion of Contracts' - was drafted to regulate cases where contracts could be concluded over the Internet.
The court could have gone a step further. Section 11 does not lay down a general obligation to implement contractual terms and conditions. It merely provides that such terms and conditions – if provided – should be made available in a way that allows the user to store and reproduce them. Violation of this obligation can result in an administrative fine. Should terms and conditions not be provided on a website, the logical consequence under civil law is merely that such terms and conditions will not constitute the basis of a contractual agreement between the service provider and user. The lack of such terms does not in itself constitute a violation of the act.
In a separate case the defendant offered telephone information services and billed customers through their standard telephone bills. The Association for Consumer Information called for the defendant to cease and desist from concluding contracts without informing its customers in advance of its identity and prices.
The Supreme Court ruled that the use of telephone information services constitutes a distance contract governed by Sections 5a and following of the Consumer Protection Act, which implements the provisions of the EU Distance Selling Directive (97/7/EC). Consequently, the rules on prior information apply.(2)
Section 5c of the Consumer Protection Act, which is almost identical to Article 4 of the directive, states that consumers must be provided with the following information in good time (and in a clear and comprehensible manner) before the conclusion of any distance contract:
- the supplier's name and address;
- details of the goods and services in question, including prices and taxes; and
- rights of withdrawal.
Section 5c(1) of the Consumer Protection Act (like Article 4(3) of the directive) includes a special provision for telephone communications, according to which the information must be clearly provided at the beginning of each conversation (like Reasoning 12 of the directive, which stipulates that consumers must be given sufficient information at the beginning of a telephone conversation to decide whether to continue).
The court held that information provided by the defendant on his website about his identity, address and service prices did not constitute sufficient prior information. Such information was not readily available at the beginning of a telephone conversation for consumers to decide in a reasonable manner whether to continue the conversation.
For further information on this topic please contact Dieter Hauck or Barbara Kurz at Preslmayr Attorneys at Law by telephone (+431 533 16 95) or by fax (+431 535 56 86) or by email ([email protected] or[email protected]).
Endnotes
(1) Austrian Supreme Court decision of April 29 2003 (4 Ob 80/03y).
(2) Austrian Supreme Court decision of April 29 2003 (4 Ob 92/03p).