The I. Civil Senate of the Federal Court of Justice, which is responsible among other things for claims arising from the UWG, has ruled that an online retailer is generally not liable under competition law for reviews of a product by customers.
The plaintiff is a registered competition association. The defendant sells kinesiology tapes. In the past, it has advertised these products as suitable for pain treatment, which is not medically proven. The defendant therefore issued a cease-and-desist declaration to the plaintiff on November 4, 2013, subject to a penalty.
The defendant also offers its products on the online trading platform Amazon. There, for each product, an ASIN assigned to this product is generated via the EAN, which is intended to ensure that when a specific product is called up, the offers of all suppliers of this product are displayed. As is known, buyers can rate the products. Amazon assigns such a rating to the product listed under the corresponding ASIN without further examination. As a result, an item displays all customer reviews that have been submitted for that product, which may be offered by multiple sellers.
On January 17, 2017, the defendant offered kinesiology tapes on Amazon. Under this offer, customer reviews were available, which included the references “pain-relieving tape!”, “This product is perfect for pain…”, “Quickly the pain subsides”, “Relief of pain is noticeable”, “The pain goes away by taping ” and “Rel ieve pain”. The plaintiff demanded payment of a contractual penalty from the defendant. Amazon refused to delete the customer reviews at the defendant’s request.
The plaintiff is seeking an injunction and payment of the contractual penalty and the warning costs. The defendant had adopted the customer reviews and should have worked towards their deletion. If this was not possible, it would not be allowed to offer the products on Amazon
Previous process history:
The landgericht dismissed the action. There is no claim aim of Paragraph 8(8) of the 1, Section 3a UWG in conjunction with Section 11 para. 1 Sentence 1 No 11 HWG. The plaintiff’s appeal was unsuccessful. It is true that the health claims contained in the customer reviews are misleading. But they were not advertising. At the very least, such advertising would not be attributable to the defendant.
Decision of the Federal Court of Justice:
The Federal Court of Justice dismissed the plaintiff’s appeal. The Court of Appeal was right to assume that the defendant was not liable under competition law for customer reviews of the products it offered on Amazon.
The plaintiff’s right to injunctive relief does not arise from Section 11 (1) of the German Civil Code. 1 sentence 1 no. 11 and sentence 2 HWG, which prohibits advertising for medical devices with misleading statements by third parties. The customer reviews are admittedly misleading statements by third parties, because the claimed pain relief by kinesiology tapes is not medically verifiable. However, the defendant had not advertised with the customer reviews. According to the findings of the Court of Appeal, which were free of any legal errors, it had neither actively advertised with the reviews itself nor had it initiated them, nor had it adopted the customer reviews as its own by assuming responsibility for their content. Rather, the customer reviews are marked as such, can be found on Amazon separately from the defendant’s offer and would not be attributed by the users to the sphere of the defendant as seller.
The defendant would also not be under a legal obligation to prevent the customer reviews from being misleading pursuant to § 5 para. 1 sentence 1 and 2 case 2 no. 1 UWG. Their offer on Amazon does not constitute a guarantee position. It is of crucial importance that customer rating systems on online marketplaces are socially desirable and enjoy constitutional protection. The interest of consumers to comment on products and to inform themselves or exchange views on the characteristics, advantages and disadvantages of a product from various sources, which also include reviews by other customers, before making a purchase, is protected by the fundamental right of freedom of opinion and information of Art. 5 Para. 1 sentence 1 GG. According to the Federal Court of Justice, there is no need to weigh this against the legal interest of public health, which as a community good of high rank could justify an encroachment on this fundamental right, because there are no indications of a health hazard in the offer of kinesiology tapes.