The defendant ran a paid-for telephone information service. As it did not have its own telephone network, it provided its information service via a network run by another operator. The end customer was billed for the service via the standard telephone bill. The defendant did not provide its customers with the name and address of the company at the beginning of the conversation and also gave no price information unless expressly asked. When the number was dialled, the caller began to incur a charge as soon as a member of staff answered the phone. This charge was collected by the network operator in its own name. On its website, the defendant provided information about the caller’s duty to pay the call charges for the information service and also listed these charges. The defendant’s billboard advertising gave a non-binding recommended retail price. The company’s name and address were not given either on the internet or on billboard posters.
The Austrian Consumers’ Association brought a class action under §§ 28 ff KSchG against the defendant for an injunction preventing it from using, in its commercial transactions with consumers, contracts agreed via distance selling (ie via a telephone information service) without notifying consumers of its name and operating address or providing price information as per § 5c KSchG before the consumers made their statement of intent to enter into a contract (ie at the beginning of the telephone call). By systematically providing paid-for information by telephone, the defendant was running a sales and service operation designed for distance selling. However, it was not providing its customers with its name and address at the beginning of the conversation as it should under § 5c para 1 KSchG, nor was it giving price information.
The defendant applied for the case to be dismissed. It argued that by dialling the number, the caller was exercising his right under the telephone service agreement he had with the relevant provider to call telephone services and was thus liable for the charges specified in the telephone service agreement. The caller had no contractual relationship with the defendant, who in turn had no claims against the caller. Thus, the defendant did not in fact have any case to answer. Even if there were a contractual relationship, the defendant had not infringed § 5c para 1 KSchG since it had made comprehensive information about the company, its services and its prices available to any prospective customer online. Even the billboard posters referred to the charges. The requests for comprehensive information to be provided via a pre-recorded message would, because of the significant time involved, mean that the consumer incurred further costs. It was not possible to provide the pre-recorded message free-of-charge for technical reasons.
Both the Court of First Instance and the Court of Appeal upheld the claim. They ruled that, by offering services over the telephone, the defendant was running a distance selling operation as per § 5a KSchG. Therefore, it was obliged under § 5c para 1 KSchG to provide the consumer with the company name and operating address, as well as details of service prices. This, however, had not happened during the telephone conversations. The online information was not adequate for a telephone information service accessed only by phone.