If a server crash leads to the failure of a website, the web hosting provider must pay damages if it has failed to create backup copies or perform backups. The amount of damages depends on the "age" of the website.
In its judgement of 22.07.2014 (Az. 22 O 102/12), the Regional Court of Duisburg takes webhosters into account. They must also make backups of the websites they manage, even if this has not been expressly agreed.
The case
In 2006, the plaintiff had a website created for over 5,000 euros. In mid-2011, she commissioned the current defendant with web hosting and paid 24 euros per month for this. The defendant in turn commissioned a subcontractor. In mid-2012, the subcontractor experienced a server crash, which resulted in the plaintiff's website no longer functioning. The plaintiff asked the defendant to restore the site. The defendant stated that an attempt was being made to Data to save, the result was to wait. In fact, reactivation of the site did not succeed because no backup had been created and thus a restoration of the data was not possible.
The plaintiff considered this to be a breach of duty of care by its contractual partner and sued it for damages of over 8,000 euros, consisting of approximately 5,500 euros for the creation of a new website and 500 euros monthly compensation for loss of use.
The defendant applied for the action to be dismissed, arguing that the host contract did not contain an obligation to make back-up copies or to make corresponding back-ups. In addition, some data from the old website was still available, which could have reduced the effort required to create a new site. The plaintiff had not made any enquiries in this regard and had therefore violated its obligation to mitigate damages.
Data backup as a contractual accessory obligation
The LG Duisburg ruled in favour of the applicant. A so-called host-provider contract had been concluded between the parties. This contains service, rental and work contract aspects. The protection of the data used is of considerable importance for the user. Therefore, it was a secondary obligation of the web host to take the necessary data protection measures, which could be done by back-up copies or backups. In this respect, the web host has a duty of preservation and care. An express agreement on data protection was therefore not necessary. And the defendant company must also accept blame for the fault of its subcontractor, where the server crash had occurred.
The applicant has, moreover, quantified its damage in concrete terms. There was no breach of the duty to minimise damage because the defendant should have stated of its own accord that it still had data files.
It follows from all of the foregoing that the applicant is entitled to compensation.
deduction "new for old" also for websites
However, the Regional Court found the amount of the claim for damages to be significantly lower than that of the plaintiff, who was awarded just EUR 1,264.51.
A so-called "new for old" deduction was made, as is also applied to vehicles damaged in accidents. In assessing the amount of damages, the court relied on the statements of an expert who stated that the average useful life of a website was 8 years. This was not contradicted by the plaintiff's argument that she had wanted to use the "old" website for an unlimited period of time. It is obvious that the plaintiff would have commissioned the creation of a new website at a future date even if the previous one had not been destroyed.
The Regional Court completely denied the plaintiff compensation for loss of use because she had not presented and proved any facts that provided "sufficient tangible evidence" for the assessment of loss of use.
The judgment is not final. The plaintiff has, by her own admission, appealed, so that the Düsseldorf Higher Regional Court will have to deal with the matter next.
