Unfair, Camouflaged Advertising

It is a judgment with relevance for the rating industry, namely the judgment of the Frankfurt am Main Higher Regional Court on unfair camouflaged advertising when considering paid product reviews within the overall rating result of a product.

If the overall evaluation result for products offered on a sales platform also includes reviews for which the reviewer is paid a fee, albeit a small one, this constitutes unfair disguised advertising if the consideration of these paid reviews is not indicated.

With its decision announced June 9, 2022, the Frankfurt am Main Higher Regional Court (OLG) has confirmed the cease-and-desist obligation imposed by the regional court.

  • The plaintiff offers the paid mediation of customer reviews on the Internet. The plaintiff’s customers are exclusively dealers on online sales platforms.
  • The defendant operates the sales platform amazon.de.

The products are rated there using an overall star rating system.

The defendant also provides its sales partners with customer reviews for a fee as part of the so-called Early Reviewer Program (current version: ERP). These are reviews by foreign reviewers for a fee or vouchers for products that were previously purchased on the US, UK or Japan marketplace. These ratings are also displayed to German buyers and are included in the overall rating result.

The plaintiff objects to the publication of ERP reviews if they become part of the overall rating result and it is not pointed out that the reviews were paid for and how many of these reviews are part of the overall rating result.

The defendant’s appeal against the cease-and-desist obligation pronounced by the regional court was unsuccessful before the OLG. The Higher Regional Court confirmed that there was unfair, camouflaged advertising.

Publishing ERP reviews without indicating that the reviews were paid for and how many reviews are part of the overall rating is unfair. The fact that these ERP reviews were taken into account – and therefore not their share either – was not indicated by the defendant and also does not result from the circumstances.

Whether Internet users expect that reviews that are not factually justified will always be included in an overall rating result can remain open. In any case, this should not “be a license to use influenced reviews,” the Higher Regional Court clarified.

The consideration of ERP reviews also has business relevance here:

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