Evaluation as a prerequisite for participation in the competition is inadmissible

The Higher Regional Court of Frankfurt am Main(OLG Frankfurt am Main, judgement of 20.08.2020, case no. 6 U 270/19) found that reviews on social media platforms are inadmissible if these reviews are given in return for participation in a sweepstake.

Can a rating be a prerequisite for participation in a competition?

The defendant sells whirlpools. On its Facebook page the defendant ran a competition in which a whirlpool could be won. Interested parties could enter by "liking", commenting on or sharing the corresponding post on the defendant's Facebook page. The defendant received a considerable number of reviews on its Facebook page alone. Reviews of the defendant on its Facebook page were also advertised on the defendant's presences on the 11880.com platform and on Google My Business.

The plaintiff saw the reviews on the defendant's Facebook page and other social media presences as an infringement of competition and issued a warning to the defendant. The defendant did not issue the requested cease-and-desist declaration with a penalty clause.

The Frankfurt am Main Regional Court sentenced the defendant as requested. The defendant's appeal was unsuccessful.

The OLG Frankfurt am Main considered the reviews on the Facebook page and other social media presences of the defendant to be a violation of competition law.

Are paid assessments problematic?

According to the OLG Frankfurt am Main, statements by third parties in advertising have an objective effect and are therefore generally valued more highly than the advertiser's own statements. Advertising with paid recommendations/reviews is therefore inadmissible.

When is an evaluation inadmissible advertising?

The Higher Regional Court of Frankfurt am Main made it clear that the accusation did not lie in the placement of disguised advertising, but in the open advertising with ratings that were purchased covertly.

Visitors to the defendant's social media presences who see the advertisement with the high number of ratings gain the impression of basically objective ratings. However, they are misled. The average consumer assumes that only satisfied customers or those consumers who consider the seen offer convincing rate a social media presence positively. The number of ratings also allows conclusions to be drawn about the awareness of a company and its products or services. However, at least some of the ratings are not freely and independently given. It can be assumed that a not insignificant part of the ratings was only given because the raters were "rewarded" by participating in the competition.

When are competitions on social media sites permissible?

Sweepstakes on social media sites are very popular. The Higher Regional Court of Frankfurt am Main has now drawn clear boundaries.

You are allowed to organise competitions. However, you may not demand a rating of your social media presence in return. It would be conceivable to mark the rating of your social media presence as a paid rating. However, this will probably not be sufficient to avoid an infringement of competition law. For a misleading statement according to Section 5 (1) UWG, it is already sufficient if a consumer takes a closer look at your offer due to a high number of predominantly positive reviews. The consumer is therefore unlikely to have taken a closer look at the labelling of the reviews as paid.

What can I ask for in return for participating in the competition?

You may (subject to the legal requirements) ask to subscribe to a newsletter in return.

We are happy to act as advisors in the entire field of competition law.

GoldbergUllrich Lawyers 2020

Julius Oberste-Dommes LL.M. (Information Law)

Lawyer and specialist in information technology law

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