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Higher Regional Court of Cologne: Customer review with care – they could be advertising

The Higher Regional Court of Cologne decided in its ruling of May 24, 2017 (OLG Köln 6 U 161/16) that the publication of customer reviews on a company website may be considered as advertising in the classical sense originating from the company itself.

The case

The claimant had requested that the defendant refrained from advertising that its product is “saving detergents” in the sense that it economizes detergent use, as the statement was not based on reliable scientific findings. The defendant signed a cease and desist declaration of that content.

While the defendant stopped the advertising, the company website still contained published reviews of its customers stating that the customers were indeed saving on detergent use by using the product.

The claimant considered the publication of the customer reviews to be a violation of the cease and desist declaration given by the defendant and sued the defendant for the payment of the agreed contractual penalty. In contrast to that, the defendant argued that the obligation to cease and desist was limited to its own advertising and did not include the publication of the reviews.

Findings of the court

The Higher Regional Court of Cologne decided that the customer reviews fall under the scope of the cease and desist declaration and their publication was therefore forbidden and led to an obligation to pay the contractual penalty, §§ 339; 133; 157 of the German Civil Code.Due to the fact that customer opinions are able to create confidence in the performance of a product and to promote its sale, they would have to be considered as advertising.

In addition to that, the court argued that the comments represent an advertisement originating from the defendant because they enabled the customer to review the product solely in the hope that positive statements about the product would prevail.

Therefore the cease and desist declaration could only be understood as including the annulment of such comments. The defendant would have been obliged to delete the customer statements on its website.

Comment

Customer reviews on the internet are of a high value for companies. The ruling by the Higher Regional Court of Cologne is one of many decisions regarding customer reviews and the legal risks associated with them. Platform operators should be advised to dedicate special attention to the content of their customer reviews.

Notable other decisions concerned the classification of customer reviews as surreptitious advertising, fake reviews at the inducement of the company and liability issues for platform operators. The multitude of decisions dealing with customer reviews is a further indicator which proves the importance of this complex issue.

Furthermore it has to be noted that the decision is another example of extending the interpretation of cease and desist orders applied by the courts in Germany, which makes it harder to determine what actions are needed to comply with such an order.


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