Supreme Court ruling: “Misleading advertising” from mobile phone provider Drei

The Association for Consumer Information (VKI) has sued the mobile phone provider Hutchison Drei Austria (“Drei”) for misleading advertising regarding internet speeds and has now been proven right by the Supreme Court (OGH). “Drei” advertised landline internet at a significantly higher speed than was ultimately available to customers. For the VKI, the ruling sets a trend for the industry.

Even indications that the speeds are maximum values ​​would not eliminate the misleading, the OGH ruled according to a broadcast from the VKI. It was criticized that maximum values ​​were given prominently and normal values ​​were given in small print.

“Drei” advertised its tariff models for fixed-line Internet on the website with upload and download speeds of 10 MBit/s and 40 MBit/s. However, the “normally available download and upload speed”, which is available around 95 percent of the day, is stated in the 12-page contract terms as around 5 MBit/s and 23 MBit/s. “Hutchison highlighted data transfer speed as a defining characteristic, even though it was not available permanently but only selectively,” the court said.

VKI demands refund for customers

Petra Leupold, head of the lawsuit department at the VKI, calls on “Drei” to draw the consequences from the verdict. “If a voluntary refund is not made collectively to individual customers, we will of course examine model processes in parallel as a follow-up that clarify the legal consequences in detail and, secondly, we will also examine other representative actions, which ultimately also involve injunctions and removal judgments force,” said Leupold according to the Ö1-Morgenjournal. The restriction of the promised speeds in the small print represents an ineffective limitation of service and customers would be entitled to warranty claims.

“Since the judgment does not contain any obligation to repay, we see no legal basis for compensation payments,” said “Drei” on Thursday. The VKI is of course free to conduct any further test cases and to subject new topics to legal review.

Another case against another top dog is also pending at the OGH, said Leupold from the VKI. The regulatory authority RTR can imagine changing the regulation on price communication. According to RTR managing director Klaus Steinmaurer, the findings will be evaluated and possible legal steps taken. Then there will no longer be a need for individual procedures with individual operators, said Steinmaurer.