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Global Media and Communications Watch The International Legal Blog for the Tech, Media and Telecoms Industry
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Business statements in blogs without indication of the author have to be seen as commercial activities and therefore must be defined as misleading advertisement

The Court of Appeal of Munich had to decide about two main aspects concerning entries in internet forums: Could such blog- or Wikipedia-entries be classified as commercial activity and therefore be subject to the German Law on unfair Competition (UWG)? And if it is possible to regard these entries as commercial activity must they be classified as misleading advertisement? (Court of Appeal of Munich, decision of 10.05.2012 – 29 U 515/12).

At first, the writing of Wikipedia-articles should have to be seen as commercial activity. Commercial activity is defined as every behavior of a person in favor to its own or a foreign company before, during or after a business transaction which is meant to promote its turnovers or purchase of goods or services and must objectively be seen as such according to art. 2 no.1 UWG. The Court stated that the article`s intention was not only to provide a public information but also to influence the purchasing decision of customers. The fact that the author published his contribution to the discussion in the name of the company whose managing director he is would support this assessment.

Secondly, this behavior should also be seen as misleading advertisement according to art. 4 no. 3 UWG. The chosen medium would create the impression of a neutral statement. The reasonably well-informed and attentive consumer would believe that Wikipedia-articles are objective elaborations regarding the themes or terms in question, although it’s a common fact that everyone has the possibility to change the content of such article.

The fact that the author reveals his identity by naming his company as author of a contribution of the discussion could not make a difference because it could not be expected by an average internet-user to also read the whole discussion relating to the article.

The Court`s claim that advertising statements must be marked as such does also not violate the author`s right of freedom of expression guaranteed by art. 5 para. 1 of the German Constitution (GG). Firstly, this decision does not exclude or limit any kind of expression as such but demands a clarification. Secondly, the right of free expression is limited by the general laws as art. 5 para. 2  GG points out.

As conclusion, the decision clarifies that the communicative activity of company-members in opinion-forming internet forums must be marked as such to prevent a classification as concealing and therefore misleading advertising. With this it follows another current decision of the Regional Court of Hamburg which has pointed out that blog entries by employees of the company which was subject to the contribution were misleading if they are not identified as such (Court of Appeal of Hamburg, decision of 24.04.2012 – Az: 312 O 715/11).

The decision in question even goes beyond the former one when claiming a clear and evident information about the author`s identity which is immediately apparent to every reader.

In practice, companies often hire public relation agencies to publish those blog-entries. While the involvement of these agencies will presumably help to keep their client be less visible, legally the company behind is still liable, as the agency only functions as their client’s representative.