Advertising with ratings on social media platforms that are given in return for participating in a competition is unfair. It can be assumed that a lottery will generate a considerable number of ratings. The Higher Regional Court of Frankfurt am Main (OLG) therefore banned the advertising of the defendant whirlpool seller in a judgment published today. The verdict could have beyond the specific case. The rules according to which ratings may be acquired, manipulated and published are evolving. Therefore, special attention is required.
Both parties sell hot tubs commercially. The defendant advertised a competition for a luxury whirlpool on Facebook. The German text says: “How can you win? Very simple: like this post, comment on it, share it; like or rate our site. Each promotion receives a ticket and increases the chance of winning ”. The plaintiff considers it to be anti-competitive if the defendant advertises with ratings that were given in this way in return for participation in a competition.
The district court has ordered the defendant to stop to advertise with ratings if these ratings were influenced by enabling participation in the lottery in return for submitting a rating. The appeal directed against this was – as in the previous urgent procedure – unsuccessful before the OLG.
The OLG decided that advertising with the reviews in question was misleading and therefore unfair. In principle, statements made by third parties in advertising had an objective effect and were therefore generally rated higher than statements made by the advertiser himself. Therefore, advertising with paid recommendations is not permitted.
A customer who makes a recommendation must be free and independent in his judgment. Here the defendant advertises with its Facebook ratings and the good average rating achieved there. However, some of the ratings were not given freely and independently. OLG arguest that it should be assumed that a not inconsiderable part of the ratings was only given because the rating was “rewarded” by participating in the competition.
“It is obvious that ratings on the occasion of the lottery are rather positive. It is not a ‘paid‘ recommendation in the literal sense of the word. Nevertheless, the evaluations are not to be regarded as objective,” states the OLG. It is also irrelevant that the plaintiff can provide concrete evidence of which evaluations were caused by the competition. “It is obvious that the competition generated a significant number of ratings,” the OLG explains.