Rechtsliteratur

  • Einzelheiten Rechtsliteratur
    • Mitgliedstaat: Österreich
    • Titel: A website is only a durable data medium if it serves as a storage medium during the contract period.
    • Untertitel:
    • Art: Article
    • URL:
    • Urheber/in: ZANKL, W.
    • Referenz: EvBl nº 147
    • Veröffentlichungsjahr: 2018
    • Schlagworte: Consumer contract, Consumer protection, Consumer rights in contracts concluded with trader, consumer and user, contract, distance contract, electronic commerce, enterprise, harmonization of legislation, jurisdiction, sale of good, sale of service, travelling and transport.
  • Artikel der Richtlinie
    Consumer Rights Directive, Chapter 1, Article 2 Consumer Rights Directive, Chapter 1, Article 2
  • Leitsatz

    Website ist nur dann ein dauerhafter Datenträger, wenn sie als Speichermedium während der Vertragslaufzeit dient.


    In the article, the decision in the case OGH 4 Ob 58/18k is discussed. The decision dealt with the question as to whether a mailbox on a website can be a permanent data medium. In the present case, the consumer received notices by e-mail arriving in the website mailbox. Data could be stored in the mailbox. According to the general terms and conditions, the company retained the right to delete the stored information after three years without notifying the consumer. The Supreme Court based its decision on European case law (ECJ C-49/11, Content Services and C-375/15, BAWAG PSK), which states that a website can be a durable medium if it allows data to be stored without the administrator being able to change it and, in addition, if it always informs the consumer separately when information for him has arrived on the website.

    The website in question did not meet these requirements because the secured data is deleted after three years. The consumer should have access to the data for as long as is necessary to protect his interests in order for the website to be considered a data medium.

    In his glossary, Zankl discusses the case and states that the opinion of the Supreme Court - that the website is not a durable data medium because the data would be deleted after three years without notification - can be derived neither from the ZaDiG nor from the ECJ decision C-375/15. Zankl argues, based on the Consumer Rights Directive 2011/83/EC, that durable media allow consumers to store information for as long as is necessary to protect their interests against the seller. As a result of this opinion, he suggests that a new referral to the ECJ is worth considering.

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