Model procedure for advertising with customer ratings

The Wettbewerbszentrale wants to have the question of the breakdown of average star ratings clarified by the BGH.

What is it all about?

The OLG Hamburg requires the indication of a reference when advertising with “known from …”, but sees no requirement to break down an average star rating by star category.

Advertisements with customer ratings are regularly the cause of legal reviews by the Wettbewerbszentrale – now the decision of the Court of Appeal is available in one of its test cases:

In a case brought by the Wettbewerbszentrale, the Hanseatic Higher Regional Court ruled, among other things, that an advertisement stating “Known from …” followed by a reference to press or radio coverage must include or link to a reference from which the coverage is derived. The court, on the other hand, did not consider it necessary to break down the ratings according to star categories when advertising with customer ratings stating an average star rating (Hanseatisches Oberlandesgericht, judgment of September 21, 2023, Case No. 15 U 108/22, not legally binding). The Senate allowed the appeal on the grounds of the fundamental importance of the case.

Advertising with “Known from …” without reference

The defendant company had advertised on the Internet for the mediation of real estate agents with, among other things, the references “Known from the media” and “Known from: …”. Subsequently, some regional and national newspapers and magazines were mentioned by name. A reference with further information was not provided.

From the point of view of transparency, the Wettbewerbszentrale considered a reference to be essential information for the purpose of verifying the advertising statement.

In contrast to the Regional Court of Hamburg, the Hanseatic Higher Regional Court assumed that the relevant public had an interest in understanding on what occasion, in what manner and also when the relevant medium had reported on the defendant. Without this information, the consumer would not be able to understand the defendant’s advertising claim at all. Without a reference, it is also not possible to determine whether the report was positive or neutral about the defendant, whether the report was solely devoted to her or whether she was only mentioned in the margins of another topic, whether the report was based on a personal experience with the defendant or not, or how long ago the report was written, i.e. whether it is still relevant in terms of time. The indication of the reference was therefore of considerable weight.

Advertising with an average customer rating

As part of the Internet presentation was also with

“Customer Rating ø 4.62 / 5.00”

respectively

advertised. The Wettbewerbszentrale is of the opinion that, in the case of advertising with average customer ratings, the total number of ratings, the relevant time period and a breakdown by individual star classes constitute material information within the meaning of Section 5a (1). 1 UWG. The Hamburg Regional Court upheld the action only in part and affirmed the claim for injunctive relief only for the purpose of stating the total number and the period in which these were submitted. The court did not consider the breakdown of ratings, i.e. how often a rating was awarded in the respective star category, to be material (LG Hamburg, judgment of 06.09.2022, ref. 315 O 160/21). This was the subject of an appeal by the Wettbewerbszentrale.

The Hanseatic Higher Regional Court dismissed the appeal on this motion and upheld the judgment of the court of first instance. The breakdown of the individual ratings according to star classes does not carry any significant weight for the consumer’s business decision. In principle, customer ratings played an important role in marketing on the Internet. A breakdown by star class would also provide useful information for consumers, as it would illustrate whether individual ratings tended to be close overall or how far apart they were, and whether there were many few or many poor ratings. However, useful information does not always constitute material information. The fact that a breakdown would increase the informative value of the stated average figure to a certain, albeit also very manageable extent, or would concretize the statement to a small extent, was not sufficient to assume a significant weight for the consumer’s business decision. Accordingly, misleading was denied.

The Senate also allowed an appeal on the question of whether the breakdown of ratings by individual star categories constitutes material information within the meaning of Section 5a UWG. The Wettbewerbszentrale intends to have this question clarified by the highest court and to file the permitted appeal.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.