22.02.2021

Unfair advertising with social media likes

It is now widely known that buying likes and ratings for a company’s social media presence is unlawful. However, there are cases where it is not immediately apparent that a “Like” was gained unfairly. It is important that any likes and ratings for a company that advertises on a social media page are given voluntarily and without a reward for the user.

Background

Likes and ratings on social media are becoming increasingly more important for a company’s marketing activities. They are a measure of awareness and popularity of the company and/or its products and increase the reach of the posts published there. No wonder, then, that a lot is being done to achieve high interaction figures and large numbers of ratings.

Users regularly assume that recommendations made in advertising have been made by neutral third parties, and that these third parties have made the recommendations for the reasons stated therein. The same assumption can be expected to be made with regard to social media pages and their likes and ratings. If these deviate from the aforesaid user expectations, this may, therefore, constitute an unfair and, thus, unlawful misleading practice under the German Act against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb – “UWG”). We would like to further elaborate on these general conditions using the following two examples from case law.

Participation in sweepstakes as a reward for ratings

“How can you win? It’s simple: like, comment on or share this post; like or rate our page. Every action receives a ticket and increases your chance of winning” – this is how a company advertised its sweepstakes and lost a subsequent legal dispute (Higher Regional Court of Frankfurt, Judgment of 20 August 2020 - 6 U 270/19). The Higher Regional Court of Frankfurt confirmed the lower court’s opinion that advertising with ratings from such a campaign can lead to misconceptions about a company’s popularity and, therefore, constitutes a misleading practice. In its decision, the Court assumed that the ratings were influenced by the participation in the sweepstakes and might, therefore, have been more positive. What makes this case particular compared to other proceedings is that no direct consideration (e.g. vouchers, discounts) was granted for the ratings. The mere possibility of participating in the sweepstakes was regarded as “consideration” by the Court.

In the opinion of the Higher Regional Court of Frankfurt, the claimant did not have to list all the ratings that were based on the misleading practice. It was rather sufficient for the claimant to prove this for two ratings, following which it was up to the operator of the page to demonstrate that no further ratings were due to the sweepstakes, according to the Higher Regional Court of Frankfurt.

Takeover of likes in the event of a company change

Another important aspect is that likes and ratings must have been given for the company and/or the products mentioned on the social media page. According to one court ruling, for example, likes originally given for a burger restaurant may not continue to be used for a new restaurant opened at the same location (Higher Regional Court of Frankfurt, Judgement of 14 June 2018 - 6 U 23/17), as such a practice would lead to the misconception that the likes were given for the new restaurant’s food and service. This is because Facebook offers the possibility of renaming a page without losing the likes that already exist for this page. The defendant had done precisely this and thus continued to use the “old” likes for its new business.

The mere argument that likes cannot be deleted individually does not lead to a different assessment, according to the Higher Regional Court of Frankfurt, which pointed out that the defendant could also be expected to delete the page and create its own, new page, even if that meant losing likes that were honestly given for the new restaurant.

Our comments

As companies use likes and ratings for advertising purposes, their misleading use can lead to warnings from competitors or consumer associations. On social media pages, the relevant information is publicly available, so that a violation can be easily proven and the risk of a warning increases. On Facebook, for example, it is possible to consult the “Page Transparency” section to find out whether a page has been renamed at some point in the past. Another aspect that should be taken into account is the simplified proof, as described by the Higher Regional Court of Frankfurt.

When organising sweepstakes, attention should be paid to the wording. The giving of a rating should not be linked to participation in the sweepstakes. On the other hand, a mere request that participants rate a page should normally be permissible. In this regard, it must be ensured, however, that the request cannot be misunderstood to mean that a rating will have an influence on the chances of winning.

The second example is often relevant in practice when social media accounts are being sold. For companies from the digital industry, social media channels with a wide reach are important assets. In this respect, caution is advised when paying large sums for such accounts: under certain circumstances, it may not be permissible for the purchaser to continue to use the predecessor’s likes for advertising purposes because the company or the nature of the business has changed.

These decisions can, to a large extent, also be applied to other social media portals that have rating systems in place. In this context, it should be taken into account that the removal of unlawfully obtained likes and ratings can prove quite difficult in practice. Depending on the social media provider, such content cannot be deleted directly by the page operator. In extreme cases, this may mean that an entirely new social media presence needs to be opened, which may result in further content being lost. It is, therefore, all the more important to consider the above-described legal standards from the outset when operating a social media presence.

Author
Laura Hoffmann, LL.M. (Dresden/London)

Laura Hoffmann, LL.M. (Dresden/London)
Associate
Frankfurt a.M.
laura.hoffmann@luther-lawfirm.com
+49 69 27229 24684