Liability for misleading hotel star ratings
The Traunstein Regional Court recently handed down a ruling that could have far-reaching implications for the travel industry. In the judgment of 30.03.2023 (Az. 1 HK O 2790/22) it was decided that a provider of package tours is liable for inaccurate hotel star information of its partner hotel that it has made its own.
The defendant had advertised a package tour on its website, which included an overnight hotel stay. In the process, a particular hotel at the destination was designated with three five-pointed stars. These stars were marked with a clickable reference pointing to a DEHOGA classification of the hotel. However, the hotel did not have such a current classification.
The Wettbewerbszentrale objected to the advertising as misleading and demanded that the defendant cease and desist. The defendant refused to issue a corresponding cease-and-desist declaration on the grounds that the information on the hotel stars was third-party content over which it had no influence.
Liability for integrated illegal content
In another decision, the Traunstein Regional Court ruled that a website operator is liable for illegal content included by means of inline links. The defendant had included content by means of inline linking, relying on the assertion that it was third-party content for which it was not liable.
The court took a different view and ruled that the defendant had made the third-party content its own by embedding it and was therefore liable for it. The defendant cannot rely on the fact that it uses the website of another service provider and that it is not liable for its content. The content appears to the market participant or Internet user as the defendant’s own information.
This ruling offers an exciting distinction from previous case law on “Stoererhaftung” (Breach of Duty of Care), particularly in comparison with the so-called “Chefkoch.de” ruling of the Federal Court of Justice. In this case, it was established that the operator of an Internet portal where third parties can post content intended for the public (in this case recipes) is liable under the general rules if he checks the posted content for completeness and correctness before it is released and thus makes it his own. This also applies if it is recognizable for the users of the Internet portal that the contents (originally) do not originate from the operator, but from third parties.
In contrast, the Traunstein Regional Court has now ruled that a website operator is liable for embedded content even if he does not actively check it or adopt it as his own, but merely embeds it by means of inline links. This represents an important development in the case law on “Stoererhaftung” (Breach of Duty of Care) and underscores the need for website operators to be aware of how they deal with third-party content and what measures they take to protect themselves from possible legal consequences.
Effects of the judgment
This ruling has far-reaching implications for the travel industry and other industries that partner in similar ways. It underscores the need for companies to carefully verify the information they provide on their websites, even if that information comes from third parties. It also shows that companies cannot assume that they are not liable for embedded content just because it comes from a third party.
For an interesting perspective on this issue, check out this blog post at my place. In it, reference is made to the ruling of the OLG Dresden, which states that a website must also identify links to affiliate partners in order to avoid infringement under §§ 3, 5 a para. 6 UWG and thus risk a warning. This applies not only to websites, but also to YouTube channels, Twitch streamers and other influencers.
The court states that the commercial purpose of the act, i.e. the affiliate links, must be identified. Average consumers must no longer be in any doubt as to the existence of a commercial purpose. This could also be the case when publishing a product test or editorial coverage.
The current ruling, as well as the other blog post and the ruling of the OLG Dresden, clearly show that you have to be extremely careful when integrating affiliate content, both in terms of content and labeling. Case law in this area continues to evolve and website operators and influencers should always be aware of the latest legal requirements to minimize legal risks.
