The vendor of a medical device being offered on the online platform Amazon cannot be held responsible for customer reviews not initiated by them (Federal Court of Justice, judgement of 20 February 2020, file no. I ZR 193/18).
In the underlying case, the defendant offered kinesiology tapes in 2013 and advertised them claiming that they were suitable for pain relief. Due to the lack of medical proof, the defendant had to submit a cease-and-desist declaration with a penalty clause after receiving a warning letter from an association.
In January 2017, the defendant offered the kinesiology tapes on Amazon. Customer reviews were visible below this offer, among others with the following statements: “Pain relieving tape!, “The pain subsides quickly”, ” Noticeable alleviation of pain”, “The taping causes the pain to go away”. Despite the defendant’s request, Amazon refused to delete the customer reviews. The association’s subsequent attempt to claim a contractual penalty from the defendant was futile.
The Regional and the Higher Regional Courts rejected the plaintiff´s complaint. The Federal Court of Justice (FCJ) agreed with the opinion of the courts and rejected the further appeal directed against it. It ruled that the Higher Regional Court had rightly rejected the plaintiff’s injunction claim based on § 8 para. 1 sentence 1, para. 3 no. 2, § 3 para. 1, § 3a Unfair Competition Act in connection with § 11 para. 1 sentence 1 no. 11 Law on Advertising in the Health Care System and stated that the defendant had not advertised with the customer ratings.
The FCJ added that the disputed customer evaluations are indeed misleading, because the alleged effect cannot be sufficiently medically proven. However, the defendant had not advertised the kinesiology tapes it offers with these customer reviews. The facts of § 11 (1) sentence 1 no. 11 Law on Advertising in the Health Care System require that the defendant has aimed to promote its sales with the customer reviews. This is not the case here. The defendant also did not espouse the customer reviews as its own position. There was also no justification to make the defendant liable for a tortious act neither from the point of view of their own active behaviour nor from the point of view of an omission contrary to duty. In the context of the required considerations, no guarantor status of the defendant can be assumed in this respect.
The decision should be welcomed. It is true that, particularly for medical devices and pharmaceuticals, there are high demands on the factual accuracy of advertising statements. However, the FCJ makes it clear that this should not lead to an extension of liability for statements made by third parties. The protection against specific health hazards intended by § 11 (1) sentence 1 no. 11 Law on Advertising in the Health Care System does not apply if the public does not perceive statements made by third parties as advertising. Distributors of medical devices should therefore check that they do not espouse independent customer ratings on relevant online platforms, to avoid establishing any responsibility for those statements under competition law.