The advertised maximum speed was significantly higher than the actual speed available.

The defendant, a provider of internet services, advertised its tariffs on its website by indicating the upload and download speeds. Although it was indicated that these were the maximum speeds, this indication was only visible after clicking on two links and scrolling further. In the terms of the contract, the defendant only promised to offer a bandwidth of about half the advertised speed for 95% of the day.

The consumer protection association filed an application to prohibit this advertising on the grounds that it was misleading. This was because it advertised a data transfer speed in the service description that deviated by more than 10% from the actual available speed. It was precisely this percentage discrepancy that was the subject of the application for an injunction. Excluded from this prohibition would be cases in which the defendant clarifies the deviation in an equally conspicuous manner. General references such as “maximum values” or “up to” would not be sufficient to meet this requirement.

Although the court of first instance upheld the claim, the court of appeal ruled that a reference such as “up to” was sufficient to avoid misleading consumers.

The Supreme Court restored the first judgment.

Stable data transmission rates, especially in terms of bit rate, are often crucial for the performance of Internet applications due to the increasing number of Internet-enabled devices in households and the increasing use of digital services, and are therefore an important factor for customers in their decision-making. The defendant emphasized the speed of data transmission as a key element of its service, even though it was only available intermittently rather than continuously. This resulted in consumers being misled about the defendant’s products. Even the reference “up to” could not eliminate the deception, as prospective customers expect fluctuations in transmission speed, but not such significant limitations as were actually present.

Supreme Court | 4 Ob 80/23b | 19.12.2023