HG Wien: Online credit and liability for children

Jan 28, 2022 Benn-Ibler Rechtsanwälte

The Vienna Commercial Court (Handelsgericht Wien, HG Wien) examined the question of the expiry of credits and the liability of parents for the online behaviour of their children on the online platform "PlayStation Network", to be necessarily used by the games console manufacturer "Sony", on the basis of a complaint filed by the Association for Consumer Information (Verein für Konsumenteninformation, VKI).

According to the general terms and conditions (GTC), parents are liable for "any ... use, including purchases and online behaviour" of their children. The Vienna Court of Appeal ruled against liability because the clause is grossly disadvantageous pursuant to Section 879 para 3 of the Austrian General Civil Code (Allgemein Bürgerliches Gesetzbuch, ABGB) due to a dixed and unlimited liability of the customer without reference to dispositive law.

Several clauses also provide for the handling of credits for the online platform. The GTC stipulate that the credit - called "service" in the GTC - is immediately available and thus no refund is possible. They also provide that the credit must be used within 2 years if it otherwise expires. With regard to the immediate provision, the HG Wien considers this to be inadmissible. With reference to Sec. 18 of the Distance and Outward Transactions Act (Fern- und Auswärtsgeschäftegesetz, FAGG), the mere loading of credit is not a consideration of the entrepreneur, which is why the right of withdrawal according to Sec. 11 FAGG exists. The further compulsory use of the credit within 2 years was a shortening of the time limit by 93% and thus also inadmissible according to Sec. 879 para 3 ABGB.

Ultimately, a decision was also made on the possibility of discontinuing features at any time with prior reasonable notice of the online platform. This clause was surprising and disadvantageous, as the consumer could hardly assess a restriction of the features and did not have to expect such a restriction. Although the online platform does not provide for the charging of fees for every action, it does have the character of a fee, which is why the clause also violates Sec. 6 para 2 no 3 Consumer Protection Act (Konsumentenschutzgesetz).

As the defendant did not contest the decision, it is not known whether the judgement is legally binding.

17 Cg 35/19g (25.10.2021)