Positive customer ratings trigger attention, customers and ultimately sales success. If a web shop or company is rated positively by customers, this can also have an effect on their products. However, advertising with customer ratings is not permitted if product descriptions or other product advertising suggest that certain customer ratings relate to the specifically advertised product, but that the rating actually relates to the company. We classify this topic, which is important for online retailers, based on a recent judgment by the Higher Regional Court of Braunschweig.
I. Misleading information is prohibited
According to the law against unfair competition (UWG), misleading business activities (e.g. product descriptions, product advertising, general advertising) that are likely to induce others to make a business decision that they would not otherwise have made are unfair (§ 5 para. 1 UWG) and therefore inadmissible (§ 3 para. 1 UWG), ie prohibited by law. Dealers who still advertise misleadingly are threatened with warnings from competitors or other persons entitled to do so under the law.
An obvious case of misleading is when there is a lie in product descriptions, ie when they contain untrue information that is de facto incorrect. Whether a certain statement in a product description or in advertising is true or untrue depends first of all on how the relevant statements are to be interpreted. It is therefore necessary to determine which specific statement is associated with a particular advertisement. This is not always very clear, especially when advertising statements are ambiguous or deliberately leave a greater scope for interpretation.
II. Interpretation of advertising claims
Whether a statement in a product description or in an advertisement is true or false can only be determined if the content of the respective product description or other advertisement has been determined beforehand.
The jurisprudence determines the content of the statement by interpreting the advertising information and its further references. The point of view of the interpretation is decisive: the dishes do not take the perspective of a perfect, ideal consumer who reads and understands everything carefully down to the smallest detail, but rather the perspective of an average consumer who is averagely informed, sensible and attentive. Such an average consumer can also miss something if it is not presented in a sufficiently clear and precise manner, or not fully understand it if it is described in too complicated a manner.
Frequently, the deciding judges themselves belong to the target group that is intended to be addressed by a particular advertisement; However, since they are “experts”, i.e. they are more familiar with the interpretation of advertising claims than laypeople, their assessment of the average consumer’s point of view can also be dubious in some cases.
III. Misleading reference to customer reviews
In a case of the Brandenburg Higher Regional Court (judgment of February 7, 2023 – Az. 6 U 55/22), the court decided that the specific way in which customer ratings were integrated into the product description of the defendant website operator was misleading.
The court considered a specific reference or reference in a product description of the advertising company to a rating of the Trustpilot rating portal to be misleading, since the target public would understand the reference to the Trustpilot customer rating in this case from the point of view of a reasonably well-informed, understanding and attentive average consumer , as if the review were related to the advertised product. At the same time – and the target audience usually does not know this – Truspilot ratings are mere company ratings and not ratings of specific products.
Based on general life experience, the court did not believe that the majority of the relevant target group was aware that the star ratings on the online portal Trustpilot were not product ratings of the kind that consumers get from a large number of online shops are known and trusted, but these ratings relate exclusively to a specific company. Even a consumer who has dealt more closely with this rating portal in the past would not be able to rule out that the company Trustpilot could have expanded its offer to include product ratings.
IV. For dealers: Recommended action for references to customer reviews
The following is recommended for online retailers in connection with references to reviews by customers, e.g. in product descriptions or other product advertising:
At best, individual product descriptions for certain products should not include any customer ratings that do not relate to the specifically advertised product. this should in any case be made sufficiently clear by means of correspondingly visible and clear information in connection with the customer rating presented. In no case should such customer ratings be integrated into individual product descriptions in a web shop or in any other sales presence, which refer to the company as a whole without this being the case there is also a visible and clear clarification that these do not relate to the specific product.
V. Conclusion: The most important things in brief
The most important can be summarized as follows:
Product descriptions and other (product) advertising must not contain false information. Advertising statements are always interpreted from the point of view of an average consumer: If an average consumer takes the reference to a customer rating in a product description to be a rating of the product, although it is a rating of the company, this is a misleading commercial activity and can be reprimanded. At best, dealers should refrain entirely from references to company ratings in connection with product descriptions. Alternatively, dealers should make sufficiently visible and clear clarifications that the customer ratings relate to the company and not to the product.
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