Burden of proof in misleading online advertising

Two law firms have argued in a case of misleading online advertising that has just been decided by the Federal Court of Justice in the context of a non-admission appeal. The defendants appeared on the Internet under the name “Lawyer’s Forum Patient Lawyers”, although the planning for a supra-regional forum of several lawyers was still in the planning stage.

However, the Federal Court of Justice partially overturned the decision of the Kammergericht Berlin and clarified:

 

The defendant is not burdened with proof of the existence of the working group, since the burden of presentation and proof of the deception, that is to say also of the non-existence of the working group, affects the applicant as the claimant. In view of the naming of alleged members of the working group by the defendant, it was therefore up to the plaintiff to prove that, in the absence of
membership of the lawyer G., a working group in the sense used by the Court of Appeal did not exist at the time of the advertising.

The resolution does not provide much else, but can be read here. It is precisely the difference between the untrue assertion of facts that is interesting in this matter.