The First Civil Senate of the Federal Court of Justice (BGH), which is responsible for competition law, has ruled that a trader who advertises his offer via a price search engine can be held liable for misleading if a price increase made by him is displayed late in the price search engine.
The parties are competitors in the field of trade in household electronics. On 10 August 2006, the defendant offered a Saeco espresso machine via the price search engine idealo.de. Mail-order companies transmit to the operator of that search engine the data of the products they offer, including the prices. The search engine classifies this information in price rankings. The cheapness of the offers determines the order in which the suppliers are named in the rankings. The defendant was in first place among 45 offers with the price of €550 he had asked for, even at 8 p.m., although he had raised the price for the espresso machine to €587 three hours earlier. The defendant had informed idealo.de of the price change at the same time as he himself had increased the price on his website. However, such changes are not displayed there immediately, but only with a time delay.
The plaintiff considers the incorrect price information to be misleading advertising by the defendant. She therefore filed a claim against him for injunctive relief, a declaration of liability for damages and information. The Berlin Regional Court dismissed the action. On the plaintiff's appeal, the Court of Appeal ruled in favour of the defendant.
The Federal Supreme Court dismissed the defendant's appeal. The averagely informed user of a price comparison portal regularly associates the information offers presented to him or her there with the expectation of the highest possible topicality. It is true that consumers today are largely familiar with the special features of the internet and thus also with its technical limitations. However, they assume that the goods offered in a price search engine can be purchased at the price indicated there and do not expect that the prices indicated there are already outdated due to price increases which have not yet been taken into account in the search engine. The misleading of consumers is also not prevented by the notice "All information without guarantee!" in the footer of the price comparison list. Clicking on this notice opens a window with another text stating that "real-time updating ... is not possible for technical reasons, so that there may be deviations in individual cases, especially with regard to the availability or delivery time of products".
The Federal Supreme Court also affirmed the relevance of misleading. It constitutes a particular competitive advantage if a supplier is in first place with its offer in the ranking list of a well-known price search engine. According to the Federal Supreme Court, traders can be expected to change the prices of products they advertise in a price search engine only when the change is displayed in the search engine.
Judgment of the BGH of 11 March 2010 - I ZR 123/08
Berlin Regional Court - Judgment of 16 February 2007 - 96 O 145/06
Kammergericht -Judgement of 24 June 2008 - 5 U 50/07
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: m.ullrich@goldberg.de
