OGH: Misleading Data Transmission Speed Adverts

Mar 15, 2024 Benn-Ibler Rechtsanwälte

In the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) dealt with an internet service provider advertising maximum data transmission speed that was, in reality, far from the actual speed.

On the defendant’s website, the tariffs were advertised with upload and download speeds. However, only after searching and clicking on two links did the maximum speeds become visible to the user. The speed normally available during 95% of the day is a bandwidth of about half the advertised rate, according to the provider’s GTCs.

The plaintiff, the Austrian Consumers’ Association, sought a ban on the advertisement on the grounds that it was misleading. Advertising of data speeds should be omitted if the normal speed is more than 10% lower than originally stated.

The defendant should only be allowed to continue to advertise as before if explicit reference was made to this issue. Statements such as ‘up to’ or ‘the stated data transfer rates are maximum values’ are not sufficient.

The court of first instance upheld the claim, but the court of appeal ruled that explanatory statements such as ‘up to’ were sufficient to avoid misleading consumers. The OGH upheld the decision of the court of first instance.

With the increasing number of Internet-enabled devices per household and the growing trend towards the use of digital products, consistently high data transfer rates are a key factor in the functionality of Internet applications and therefore of great importance to consumers.

The defendant presented the data transmission speed as a key feature of its service even though that speed was only available sporadically and not permanently. It thus misled consumers: Simply mentioning ‘up to’ is not sufficient to preclude misrepresentation. Consumers do expect some variation in speeds, but not as much as was the case here.

OGH 4 Ob 80/23b (19 December 2023)