FCJ – Sellers on Amazon are generally not liable for customer reviews
In its decision of February 20, 2020 (docket number. I ZR 193/18), the Federal Court of Justice (FCJ) dealt with Amazon’s customer review system and clarified the principal question of the conditions under which single customer reviews can be ascribed to the retailer of the reviewed product. The case decided was related to the offer of kinesiology tapes on Amazon. These products are basically covered by the German Medical Products Advertising Act (HWG). The customers described the product in their reviews among other things as “pain-relieving”. A special fact in the present case was that the retailer itself had previously advertised the tapes as “pain-relieving”.
The case was thus based on the question of whether customer reviews on Amazon can be ascribed to the retailer in the specific case in such a way that they infringe § 11 para. 1 sentence 1 No. 11 HWG. According to this, it is not permitted to advertise with statements by third parties outside the specialist circles for drugs, procedures, treatments, objects or other means, in particular with letters of thanks, acknowledgement or recommendation, or with references to such statements if they are made in an abusive, repulsive or misleading manner.
The FCJ has now decided that the retailer does not violate the Unfair Competition ACT (UWG) by customer reviews, as long as he does not adopt these reviews as his own. Therefore, it depends crucially on whether the retailer recognizably assumes the responsibility for the content of the statements of third to the outside. The same applies if the seller gives an attributable impression that he identifies himself with these statements in the customer reviews. According to the FCJ, this should be denied in the case of an ordinary third-party retailer on Amazon because the customer reviews are recognisably not from the retailer.
The FCJ also examined whether the retailer had a guarantor position due to previous endangering behaviour and whether this resulted in a corresponding liability. It would be conceivable that the retailer has a guarantor obligation to prevent identical customer reviews due to his own previous advertising. According to the decision of the FCJ, such a guarantor position is determined by the circumstances of the individual case and requires consideration. Within the course of consideration, the FCJ stated in its decision in particular that a customer review system is fundamentally socially desired and that the reviews as such are protected under constitutional law in accordance with Article 5 (1) sentence 1 of the German Constitution Law (GG). A guarantor obligation would therefore only be based on the protection of public health. In the present case, the retailer offered kinesiology tapes, from which no danger for the customers emanates. As a result, the FCJ denied a guarantor’s obligation. The FCJ is likely to come to a similar conclusion for all products that may be sold via Amazon permissibly.
The above does of course not apply, when the seller gave the customer reviews himself, the customer were paid for it or the customer review can be attributed to the retailer for other reasons as advertising. In most cases, however, it will probably be difficult to prove that the retailer acted accordingly.
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