The defendant company was requested by a competitor to cease and desist, initially out of court and later also in court. The point of contention was the defendant company’s advertising with its good reviews on Facebook. The competitor considered this to be unfair because the reviews had been “bought”, at least in part: Users had been asked to rate the defendant on Facebook in order to take part in a competition.

Ratings must be given objectively

Both the Regional Court of Frankfurt a.M. (judgment of November 19, 2019, case reference: 3-06 O 87/18) and the Higher Regional Court of Frankfurt a.M. (judgment of August 20, 2020, case reference: 6 U 270/19) confirmed the plaintiff’s view. Anyone who sees online reviews would generally consider them to have been submitted voluntarily and objectively. However, advertising with paid reviews or reviews submitted for other reasons that are not voluntary or dependent would be perceived differently.

Participants in competitions do not evaluate objectively

However, the judges denied that the competition participants had the necessary objectivity. Although a positive evaluation was not required, experience has shown that such evaluations tend to be more positive. The larger number of reviews would also create a positive impression, e.g. of the defendant being better known. All of this is not readily apparent to later users – but is important for the classification of the reviews.

Users are not used to ratings generated by profit games, but rather objective ratings

Furthermore, the OLG Frankfurt a.M. does not consider it proven that users are already accustomed to such competitions and the associated distortion of reviews. The fact that the defendant had offered a valuable prize in the competition would argue against this: such an approach is only worthwhile if one expects to benefit from it through more and better ratings.

It was also irrelevant that users had other opportunities to take part in the competition (e.g. “liking”, commenting on or sharing the post). Because there was an additional ticket for each action, users would certainly have wanted to increase their chances and therefore also submitted a rating. In any case, this would be prima facie evidence. The defendant was also unable to refute this.

The appeal was not allowed, but the defendant can still lodge an appeal against denial of leave to appeal with the BGH.