Judgment of the Higher Regional Court of Hamm dated April 16, 2024 – Ref. No.: 4 U 151/22
“Rate your purchase” – customers are often invited to rate their online purchases in such or similar terms. There are always competitors who take advantage of this opportunity to damage their rivals on the internet by leaving negative reviews. However, the Higher Regional Court of Hamm set clear boundaries for such behavior with its ruling on April 16, 2024, and made it clear that this could constitute an immoral intentional damage under § 826 of the German Civil Code (BGB) (Ref. No.: 4 U 151/22).
Those engaged in online trading usually offer their customers the option to rate their purchases. With stars or short comments, they can express their satisfaction or dissatisfaction. Not every customer can be satisfied, and it is part of the business to receive negative reviews, explains the law firm MTR Legal Rechtsanwälte, which also provides advice in IT law. However, this function must not be abused to harm a competitor.
Frivolous Orders and Returns
If the seller offers such a rating option, they must accept that customers may use it to express their dissatisfaction. However, they do not have to tolerate a competitor using this function to disparage the offering and systematically burden the rival with frivolous orders and subsequent returns. The Higher Regional Court of Hamm made it clear in its ruling of April 16, 2024, that such behavior can constitute an intentional immoral damage.
In the case in question, two employees of a mattress retailer repeatedly ordered mattresses from a competitor online and returned them. They regularly left negative reviews on internet sales platforms. The comments ranged from “(…) Item damaged” to “The mattress smells terrible, I’ve aired it out, but it hasn’t improved” and “(…) Customer developed a rash from the item” to “The package never arrived! I have since bought a mattress in a store. I want my money back.” There was no indication that these claims were true.
Unfair Behavior and Immoral Damage
The affected retailer subsequently issued a warning to the competitor. The behavior of the two employees, for which the defendant is liable under tort law, was unfair and constituted an immoral intentional damage. The plaintiff therefore demanded the submission of a cease-and-desist declaration with a penalty clause and compensation. The defendant denied responsibility and stated that they had not instructed any employees to place the orders. The Paderborn Regional Court granted the plaintiff claims for injunctive relief and damages.
The Higher Regional Court of Hamm confirmed the first-instance decision on appeal. The Regional Court had rightly found intentional immoral damage. Furthermore, the Higher Regional Court established that merely publishing detrimental statements about the suing competitor to third parties, in this case to the operators of the sales platforms, constituted interference with the plaintiff’s legal sphere, which could be regarded as damage under § 826 BGB. There was no recognizable legally valid interest on the part of the defendant in the behavior of its two employees in the case at hand. Rather, it was obviously only intended to diminish the reputation of the suing competitor in the public eye and with the platform operators as their contractual partners and to systematically burden the plaintiff with the processing of frivolous orders and subsequent frivolous return procedures, the Higher Regional Court of Hamm further explained.
Right to Injunctive Relief and Damages
The Higher Regional Court also clarified that the defendant is accountable for the actions of its employees. A simple and general denial of responsibility is not sufficient.
The plaintiff is entitled to injunctive relief and damages, confirmed the Higher Regional Court of Hamm in its first-instance decision.
Damaging competitors through frivolous orders, returns, and negative reviews can lead to competition law and tort law consequences, as the ruling of the Higher Regional Court of Hamm demonstrates. MTR Legal Rechtsanwälte provides advice in IT law and is also a competent contact in competition law to enforce or defend claims.
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