Guiding principle
- On the unfairness of reviews on social media platforms if they are submitted in return for participation in a competition
- On the question of the extent to which the plaintiff must demonstrate the dependence of the disputed ratings on the competition
- The existence of prima facie evidence that a significant proportion of the reviews available on the platforms were prompted by the competition
Tenor
The defendant’s appeal against the judgment of the 6th Chamber for Commercial Matters of the Regional Court of Frankfurt am Main delivered on November 19, 2019 is dismissed.
Orders the defendant to pay the costs of the appeal proceedings.
This judgment and the contested judgment are provisionally enforceable.
The defendant can avert enforcement of the injunction obligation from the contested judgment by providing security in the amount of € 70,000 unless the plaintiff provides security in the same amount prior to enforcement.
In addition, the defendant may avert enforcement by providing security in the amount of 120% of the amount enforceable on the basis of the judgments, unless the plaintiff first provides security in the amount of 120% of the amount to be enforced in each case.
The appeal is not permitted.
Reasons
I.
The plaintiff demands that the defendant refrain from advertising reviews in connection with whirlpools if they are given in return for participation in a competition.
The parties sell whirlpools commercially. The defendant advertised a competition for a luxury whirlpool on the Facebook platform by means of a “post” (p. 4 of the file). The defendant’s text stated:
“How can you win? It’s simple: like, comment and share this post, like or rate our page. Each action earns you a ticket and increases your chance of winning”.
The plaintiff considers the prize offer to be an infringement of competition law, warned the defendant in a letter from a lawyer dated May 4, 2018 and unsuccessfully demanded a cease-and-desist declaration with a penalty clause.
Finally, the plaintiff applied to the Regional Court of Frankfurt am Main for a temporary injunction, which granted the urgent application as requested in an order dated May 24, 2018. In response to the defendant’s objection, the Regional Court upheld the preliminary injunction. The appeal lodged against this was dismissed by judgment of 16.5.2019 – 6 U 14/19 (wrong in the LG judgment 14.5.2019).
In a final letter dated 26.6.2019, the plaintiff unsuccessfully requested the defendant, setting a deadline, to recognize the decision issued in the summary proceedings as the final ruling and to waive all legal remedies.
With the present action, the plaintiff continues to pursue its claim in the main proceedings – together with out-of-court legal fees (injunction = claim 4; payment of € 996.95 = claim 1; payment of € 1,752.90 = claim 5).
Please refer to the facts of the contested judgment for the facts of the case and the disputed submissions of the parties at first instance.
In its ruling dated November 19, 2019, the Regional Court upheld the claim. Please refer to the grounds for the decision.
The defendant’s appeal, which was lodged in due form and time and is well-founded, is directed against this and pursues its motion to dismiss.
The defendant argues:
The regional court had wrongly upheld the claim.
The alleged infringement of competition was already lacking. In any case, the plaintiff had neither established nor proven an infringement in the scope of the injunctive relief.
The findings of the Regional Court were based on conjecture, as it was not clear from the plaintiff’s submission that it was unable to make further findings regarding “purchased” Facebook comments. Ultimately, despite the burden of presentation and proof incumbent on her, the plaintiff had only submitted two Facebook comments which, according to her understanding, had been “bought”. In this respect, the plaintiff had in any case not demonstrated any relevant misrepresentation. The statement of the suspicion that the advertising claim made by the defendant was misleading was not sufficient for a conclusive claim.
A claim for injunctive relief was ruled out in any case with regard to the information on the “11880.com” portal. No reviews had been advertised there that had been influenced during the period of the competition. As anyone can see from Annex CF 1, only those Facebook comments were advertised on the portal that had been submitted before the competition was announced. Misleading advertising could therefore be ruled out because only uninfluenced applications were advertised.
Furthermore, the Regional Court misunderstood the defendant’s submission regarding the functionality of the Google My Business profile. It could by no means be assumed that the information included ratings or comments that had been written or published after the competition had been announced. Since the defendant itself had no knowledge of whether the Facebook page had been crawled before or after the promotion, it was permissible to dispute the plaintiff’s assumptions with ignorance. The plaintiff would have had to prove that the information contained influenced Facebook comments.
The amount in dispute set by the Regional Court of € 75,000 was excessive. Taking into account the scope of the act complained of, a principal amount in dispute of at most € 10,000 appears appropriate.
The defendant applies analogously,
amend the contested judgment and dismiss the action.
The applicant claims that the Court should,
dismiss the appeal.
The applicant defends the contested judgment.
II.
The defendant’s admissible appeal cannot succeed on the merits.
The Regional Court rightly upheld the action. The defendant’s appeal attacks cannot call this result into question.
1) As the Regional Court correctly found, the plaintiff – as a competitor of the defendant – is entitled to injunctive relief against the defendant under Sec. 8 para. 1 and 3, § 3 para. 1, § 5 para. 1 UWG. The advertising with the disputed reviews is misleading and therefore unfair. The Senate stated this in its ruling of 16.5.2019:
Statements made by third parties have an objective effect in advertising and are therefore generally valued more highly than the advertiser’s own statements (Bornkamm/Feddersen in Köhler/Bornkamm, 37th ed., § 5 Rn 1.165). Advertising with paid recommendations is therefore inadmissible. A customer who makes a recommendation must be free and independent in his judgment. A falsely created appearance of objectivity is misleading. An exception only applies to recommendations by celebrities in advertising, as the public knows that a well-known name may not be used free of charge (Bornkamm/Feddersen loc. cit. para. 1.166).
The defendant advertises with its Facebook ratings and the good average score achieved there on Facebook and in other social networks, namely on “Google My Business” (Annex CF1, p. 1) and on “11880.com” (Annex CF1, pp. 11, 14). At least some of the reviews were not submitted freely and independently. It can be assumed that a not inconsiderable proportion of the reviews were only submitted because the reviewers were “rewarded” by participating in the competition. It is also obvious that reviews are more likely to be positive as a result of the competition. This does not constitute a “paid” recommendation in the literal sense. Nevertheless, the ratings cannot be regarded as objective. Visitors to the defendant’s pages on the Facebook, Google My Business and 11880.com platforms who see the advertisement with the high number of reviews and the high average score, on the other hand, gain the impression of fundamentally objective reviews. They are misled. Contrary to the defendant’s view, this is not because the reviews are not product reviews in which the buyer rates a product that has already been purchased. In the present case, users of social media platforms rate the defendant’s Facebook page. This makes no significant difference. The average consumer assumes that only satisfied customers or consumers who consider the offer they have seen to be convincing will rate the social media presence positively. The number of ratings also allows conclusions to be drawn about the awareness of the company and its products. Contrary to the defendant’s view, it cannot be assumed that all visitors to the site go through the content of the reviews and therefore recognize for themselves that some of them were only submitted on the occasion of the competition.
Contrary to the view expressed by the defendant’s representative at the hearing, it cannot be assumed that visitors to social media platforms are already so familiar with the (unfair) practices involved in generating reviews that they do not attribute any objective significance to the reviews from the outset. If this were true, the defendant would certainly not have offered a valuable reward for the submission of reviews.
The defendant also cannot successfully argue that it was not mandatory to submit a rating in order to participate in the competition. Rather, it was sufficient for participation to “like”, comment on or share the defendant’s Facebook page or the competition post. In fact, it was the case that “every action” earns a ticket and increases the chances of winning (Annex CF1, p. 6). A participant who wants to have the best possible chances of winning will therefore make use of several or all actions that earn a ticket, if possible.
Finally, the defendant cannot be heard to argue that the information on “Google My Business” is not misleading because the public can easily recognize that it is advertising. That is not the point. The accusation does not lie in the placement of disguised advertising, but in the (open) advertising with reviews that were (covertly) purchased.
The deception is also likely, within the meaning of Section 5 para. 1 UWG to induce the consumer or other market participants to take a commercial decision that they would not have taken otherwise. In addition to the decision to purchase or not to purchase a product, the term “business decision” also covers directly related decisions such as, in particular, entering a store (see BGH GRUR 2016, 1076 – LGA tested) or – as here – accessing a product offered on the Internet via an advertising page in order to deal with the product in detail (see BGH, judgment of 7.3.2019 – I ZR 184/17 – Energieeffizienzklasse III, para. 29, juris). Advertising with a high number of predominantly positive reviews is likely to encourage consumers to take a closer look at the defendant’s offer (…).”
The Senate adheres to these legal arguments. The objections raised by the defendant against this in the appeal are not convincing.
Thus, the defendant cannot be heard to argue that the plaintiff’s submission and the findings of the Regional Court are merely based on conjecture, since the plaintiff only submitted two Facebook comments that can be traced back to the competition, but it does not follow from this that all evaluations were made in this way.
In the ruling on the summary proceedings, the Senate already stated that it is not important that the applicant only proved that two of the total of around 4,000 reviews were actually caused by the competition. It is obvious that a considerable number of reviews were generated by the competition. The influence does not have to result explicitly from the text of the review. For the majority of the influenced reviews, the influence is also unlikely to be directly apparent from the review text.
The plaintiff was therefore unable to provide any further substantiated explanations regarding the actual number of reviews influenced by the competition. In this situation, there is much to suggest that the defendant has a secondary burden of proof that, apart from the two reviews submitted with the complaint, no other reviews are attributable to the competition. After all, it created the connection between the reviews and the competition itself. In any case, however, prima facie evidence is in favor of the plaintiff to the effect that a significant proportion of the reviews were only submitted because the respective reviewer was prompted to do so by the competition. The defendant has not presented any evidence that could shake this prima facie evidence.
The defendant’s objection that the injunction is too broad is also irrelevant, as there is no injunctive relief in relation to the portal “11880.com” because it only advertises with Facebook comments that were made before the competition was announced.
The sentencing order does not specifically name the portal. The defendant is (merely) ordered to refrain from (…) “advertising with reviews if these reviews were influenced by the defendant by enabling participation in a competition in return for the submission of a review, as happened on the social media platform Facebook (…)”.
However, there are no objections to the assumption that the obligation to cease and desist essentially relates to all platforms on which the reviews potentially influenced by the competition – i.e. those that were submitted from the placement on 29.3.2018 until the prize draw on 17.6.2018 – are advertised.
Insofar as the defendant’s objection is aimed at the fact that it was also ordered by the contested judgment to remove comments from the portal “11880.com”, although no unfair comments can exist there at all, because the comments published there were made before the competition was announced, this also gives no reason to limit the obligation to cease and desist.
Insofar as the reviews submitted on the “11880.com” portal can be classified in terms of time, there is no need for the defendant to take action within the scope of its obligation to remove reviews that were clearly submitted before the competition was announced. The limitation, which the defendant misses, already results from the fact that the obligation to cease and desist is limited by the operative part to comments that were generated by the competition.
Finally, the defendant cannot be heard on the grounds that, with regard to the Google My Business profile, it is not certain whether the disputed reviews are present there because the transfer takes place by automatic crawling and it does not know whether this took place before or after the competition. In this respect, the above-mentioned information on the “11880.com” portal applies accordingly.
If the defendant’s objection is to be understood as questioning its responsibility for the fact that there are reviews in the profile that were generated by the competition because they were automatically “crawled”, this cannot exonerate the defendant either. On the one hand, the defendant has made it possible for the reviews generated by the competition to also appear on the Google My Business profile by linking the competition to the reviews itself. And only it can also stop it by changing the conditions of participation. On the other hand, the automatic crawling does not relieve the defendant. This is because the defendant has created a continuing state of disturbance through the competition. The injunctive relief therefore also obliges it to take possible and reasonable measures to eliminate the disruptive situation. The measures owed thereunder may also include influencing third parties if it benefits economically from their actions and must seriously expect (further) infringements, insofar as it has legal or actual influence (BGH, judgment of July 12, 2018 – I ZB 86/17 = GRUR 2018, 1183 – Wirbel um Bauschutt). This is the case here. The defendant does not claim that it is not able to influence Google or the otherwise relevant crawler services.
2. with the contested judgment, the defendant is firstly liable to pay compensation for the costs of the warning (= the operative part of the judgment at 2.) pursuant to § 12 para. 1 sentence 2 UWG in the amount of (still) € 996.95 (originally € 1,732.90 less a procedural fee of € 755.95 of 0.65 for the summary proceedings and plus the lump sum according to No. 7002 RVG-VV – see calculation in the statement of claim p. 6 = sheet 6 of the annex). On the other hand, the conviction extends to the reimbursement of the costs of the final letter in the amount of € 1,752.90 (= judgment to 3.) on the basis of justified management without mandate.
The defendant does not contest the calculation of the respective fees in its appeal. Reference can therefore be made to the relevant statements in the contested judgment. In particular, the approach of the main value in dispute and the offsetting of the fee from the summary proceedings against the costs for the warning letter are not objectionable.
Insofar as the defendant objects that the amount in dispute of € 75,000, which is decisive for both the warning costs and the costs of the final letter, is excessive and that a maximum amount in dispute of € 10,000 is appropriate, this does not apply either.
In the preceding summary proceedings, the Senate set a value in dispute for fees of € 50,000 (see minutes of 16.5.2019 – p. 408 of the accompanying file). In accordance with the established case law of the Senate, this value corresponds to two thirds of the value in dispute in the main proceedings. The main value in dispute is therefore € 75,000 (50,000 : 2 x 3) – as assumed by the Regional Court. There is no reason to deviate from this.
The decision on costs follows from Section 97 ZPO.
The ruling on provisional enforceability is based on sections 708 no. 10 ZPO, 711; 709 sentence 2 ZPO.
The appeal was not admissible because the requirements of section 543 para. 2 ZPO are not met.