Threat of SCHUFA entry violates personality rights

Time and again, debt collection agencies instructed by legal warning firms threaten in file-sharing matters with notification of an entry at SCHUFA Holding AG in order to pressure the warned parties to pay the demanded costs. The Higher Regional Court (OLG) Düsseldorf has now put a stop to this business practice.

In the underlying dispute, customers of Vodafone who objected to the amount of their telephone bill and therefore refused payment of the bill were informed by the mobile communications company through a debt collection company that Vodafone D2 GmbH was obliged to report the payment arrears to SCHUFA. At the same time, the disadvantages of a negative SCHUFA entry were pointed out. The notice used was worded as follows:

"As a partner of the Mutual Protection Association for General Credit Security (SCHUFA), Vodafone D2 GmbH is obliged to report the undisputed claim to SCHUFA, insofar as an interest assessment to be carried out in your case does not provide otherwise. A SCHUFA entry can significantly hinder you in your financial matters, e.g. in obtaining a loan. You may then also be unable to use services from other companies, or only to a limited extent"

A D2 customer now took action against this threat.

Court decision

The OLG Düsseldorf ruled in judgment of 09.07.2013, Az. 20 U 102/12, that Vodafone is prohibited from threatening to report an unpaid claim to SCHUFA if the customer has not been expressly informed that the customer can prevent the report to SCHUFA by simply disputing the claim.

This central prerequisite for the notification of a claim not yet finally determined by law must therefore be pointed out in order to avoid misconceptions and to limit the massive pressure on the consumer's freedom of decision that accompanies the notice to the extent necessary for the duty to inform. The formulation given above does not meet this requirement, despite the use of the adjective 'undisputed claim'.

Conclusion

The meanwhile customary procedure in file-sharing matters by legal warning firms, in which the legal warning firm instructs a debt collection agency to collect the mostly disputed claim of its client and to threaten a SCHUFA entry in the event of non-payment, should now cease according to the judgment of the OLG Düsseldorf.

The Higher Regional Court sees such threats as a violation of competition law, as pressure is thereby exerted on the consumer in an improper manner in order to move him to make an anxiety-driven payment. The warned party can legally defend himself against this procedure.