The judgement of the German Supreme Court of 4th March 2004 (File Number III ZR 96/03) – No responsibility for hidden dialers
Facts of the case
The Berlin-based telephone company sent a customer a telephone bill amounting to approx. EUR 9.000. As it turned out, such excessive charges had been caused by the reconfiguration of the dial-up configuration by a program downloaded from the internet by the customer’s then sixteen-year-old son. He had downloaded the program to his personal computer since he believed it would increase download rates. Having noticed that the program merely established a connection to expensive internet pages with erotic content, he deleted the folder containing the program files. However, the program had already reconfigured the computer's dial-up configuration in such a way that a premium rate 0190-number was used for every dial-up connection following the installation of the program. Even after the respective folder containing the files had been deleted, the reconfiguration remained unchanged.
The lower court (Kammergericht) had dismissed the claim, reasoning that the telephone company is entitled to charge only the calls to the customer that would have been generated if the customer had used standard access to the internet. The company was held responsible for the acts of the operator of that particular premium rate number.
The German Supreme Court sided with the lower court, holding that customers of telephone companies do not have to pay any extra charges if a connection was used in circumstances beyond the customer’s control or charges for premium rate numbers dialled by an automatic dialling software if the software has been installed secretly and the customer has acted with due care.
The Court expressly negated a breach of the duty of care by either the customer or her son. The Court found that the customer had no means of becoming aware of the automatic dialling software. The dial-up using the 0900-number occurred from May until June of 2000. Because the telephone company had not billed the customer until at the end of August, the customer had not discovered the excessive charges and thus could not have taken any countermeasures. The reconfiguration of the dial-up connection had been undetectable during standard use of the computer.
Further, the German Supreme Court reasoned that the telephone company benefited economically from the use of the premium rate numbers for dial-up connections, since it only has to pay a part of the increased phone charges to the companies that operate the premium rate numbers. Therefore, the Court ruled that the telephone company is liable for improper use of those numbers, and not the customer.