The Presidium of the Supreme Commercial Court of the Russian Federation (the “SCC”) will review the issue of a user’s contractual obligations to the provider when the user’s internet traffic has been illegally used by a third party.
Circumstances of the case
In 2007, a communications service provider (the “Provider”) and an individual entrepreneur (the “User”) entered into an agreement for the provision of internet service. As a result of a failure to pay for the service from April 2009 to August 2010, the User accrued a debt of RUB 224,330 (approx. EUR 5,600).
According to the User, however, a third party had illegally used its login and password for the disputed period. The ruling of the court in the respective criminal case confirmed this fact, finding the third party guilty of unlawfully using the User’s internet traffic.
However, the first three instances of the commercial courts ruled that the User was indeed directly responsible for the debt, indicating that:
- the unsanctioned use of internet traffic does not exempt the User from having to pay the Provider for the service;
- the User did not protect its login and password, and did not inform the Provider of the need to block them;
- the contract does not stipulate that the Provider is responsible for the unsanctioned use of the User’s internet traffic by third parties; and
- the User is recognised as the victim within the criminal case, thereby it may take regressive action to recover damages resulting from unlawful access by the third party.
When transferring the case to the Presidium of the SCC, the panel of judges of the SCC noted that:
- the courts have obliged the User to pay for a service it did not use;
- the courts have not clarified which measures the User should have taken to protect its login and password; and
- in similar cases, the courts have absolved other users from having to pay for services that they had not ordered if it was proven that a third party had unlawfully used internet traffic.
The Presidium of the SCC is expected to review the case soon, which should result in setting a uniform court practice for similar disputes.
[Ruling of the Supreme Commercial Court of the Russian Federation of 6 June 2012, as part of case No. A32-1164/2011]