Damages for Internet connection failure

If the Internet fails, is the user entitled to damages? And if so, in what amount? The Local Court (AG) Düsseldorf has ruled on this matter.

The user sued his former Internet service provider after the switch to the new provider did not run smoothly. The user had no Internet connection at all for 12 days. The court found it proven that the former provider had breached its statutory obligation to maintain the connection continuously until the provider switch took place. The question was whether the user, who had unsuccessfully attempted to establish a provisional Internet access, could claim damages for the mere loss of the opportunity to use the Internet.

The court's decision

Following the decision of the Federal Court of Justice (BGH) of 24.01.2013 (BGH, Urteil vom 24.01.2013; Az. III ZR 98/12), the court in its decision of 31.03.2014 (Az. 20 C 8948/13) clarified that the loss of the possibility to use the Internet is in principle entitled to damages. The BGH had determined in its decision that the Internet is also of central importance to private users for their own economic livelihood; if it is not provided continuously, this has a significant impact on their material livelihood and is not merely an individual diminution of enjoyment.

With regard to the amount of damages, the court, again following the BGH, stated that the amount which the owner would have had to spend on renting a substitute thing to bridge the downtime should not automatically be decisive. Rather, only an amount could be claimed which is based on the market-standard, average costs that would have been incurred for the provision of a connection with the agreed capacity for the relevant period. What is to be compensated is the so-called compensation interest, not the reparation interest. The decisive question is therefore: what is the usability worth in monetary terms?

It should be noted: from a damages perspective, any potentially higher costs for renting a substitute item (such as a smartphone) or the successful establishment of a provisional Internet access are reimbursable if they were actually incurred. If these are reimbursed, the damages claim for the loss of the possibility to use the Internet ceases to apply.

Conclusion

The user has a claim for compensation of the damages incurred through the loss of usability of the Internet. According to the case law, the loss of usability of the Internet has a significant impact on the foundation of our livelihood.