The German market is highly competitive. Nevertheless, there are legal limits in this respect, which in German law result from the antitrust law (GWB) and the unfair competition law (UWG). While the GWB protects competition as the applicable economic system as such, the UWG contains the regulations on fair economic conduct.
Someone acts unfairly if he or she fulfils one of the elements of §§ 4-7 UWG, which concretize the prohibition as well as the undefined legal concept of unfairness from § 3 I UWG. The legal consequence can be a claim for removal, injunction and damages as well as a claim for the return of the profit from §§ 8-10 UWG. In addition to the consumer protection regulations, the most important case groups of competitor protection are found in § 4 UWG. In particular in connection with the offences of insult of §§ 185 ff. StGB and insinuations in business transactions, the no. 1 and 2 of § 4 UWG are relevant in civil lawsuits.
§ 4 UWG: ACTING UNFAIRLY
“Unfair acts are those who disparages or denigrates the marks, goods, services, activities or personal or business relationships of a competitor
claims or disseminates facts about the goods, services or business of a competitor or about the entrepreneur or a member of the management of a competitor which are liable to damage the business of the enterprise or the credit of the entrepreneur, unless it is proved that the facts are true; if the information is confidential and the person making the communication or the recipient of the communication has a legitimate interest in it, the act is unfair only if the facts have been claimed or disseminated contrary to the truth;
In what way may a business partner express himself to you? What are the civil-law consequences of an insult or an insinuation that criminal acts are being carried out between entrepreneurs?
B. SCOPE OF LEGAL PROTECTION UNDER § 4 NOS. 1 AND 2 OF THE UWG
The UWG is applicable if the unfairness of a business act according to § 3 I, II UWG in conjunction with § 2 I No. 1 UWG is given. In addition, the protection of competitors from § 4 No. 1 and 2 according to § 2 I No. 3 only applies if there is a concrete competitive relationship between the companies concerned which is affected by the respective business act.
An insult or imputation between competitors can therefore only be punishable under competition law if there is a concrete competitive relationship between the two entrepreneurs, the insult or imputation is a business act and there is a causality between the two elements, so that an impairment can be assumed.
I. § 4 NO. 1 UWG
§ Section 4 No. 1 UWG prohibits disparaging or disparaging business conduct towards a competitor with regard to his trade marks, goods, services, activities or personal or business relationships. This protects the competitive interest of the competitor – but not his private honour (OLG Brandenburg, judgement of 13.12.2016 – 6 U 76/15; BGH, judgement of 12.12.2013 – I ZR 131/12).
The reduction is the objectively unjustified reduction of the esteem of the competitor, his company or his services. The denigration is an increased form of reduction (OLG Hamm, judgement of 22.4.2010 – 4 U 226/09). The scope of protection includes expressions of opinion, but also implicit assertions and statements of fact (Statement of the Federal Government 2003 BT-Drucksache 15/1487, p. 18; LG Wuppertal, MD 2007, 321 f.). Factual statements are statements about facts or events that claim to be true to reality and whose accuracy can be objectively verified by gathering evidence (BGH, judgment of 14 May 2009 – I ZR 82/07). Legal or moral evaluations, on the other hand, are expressions of opinion (OLG Düsseldorf, judgment of 1.9.2009 – I-20 U 89/09).
In each individual case, an overall assessment of all circumstances is always decisive for the evaluation of a case. This is particularly important against the background of the conflicting fundamental rights of the persons concerned. The protection of the competitor results from the freedom of occupation and the general right of personality from article 12 GG and article 2 I GG in connection with article 1 GG and the right to objective criticism of the other person exists on the basis of the freedom of opinion and press freedom according to article 5 GG. As regularly anti-competitive the abusive criticism, the use of swear words as well as derogatory or unobjective flat-rate devaluations were classified (OLG Frankfurt, judgement of 27.3.2014 – 6 U 75/12; OLG Munich, judgement of 11.11.2010 – 29 U 2391/10).
In summary it can be said that § 4 No. 1 UWG protects against the impairment of the esteem in business transactions, which can be caused by true factual claims as well as expressions of opinion. It is therefore a prohibition against damage to reputation between entrepreneurs.
II. § 4 NO. 2 UWG
The scope of protection of Section 4 No. 2 UWG refers to the damaging assertion or dissemination of facts which are not demonstrably true and which relate to a member of management, a competitor or his goods, services or company. As far as confidential information is concerned, in which a legitimate interest exists, only untrue factual claims and their dissemination are prohibited.
An assertion is the making of one’s own statements of facts and the dissemination is the passing on of other people’s statements of facts (BGH, judgement of 23.2.1992 – I ZR 75/93). For not provably true facts a reversal of the burden of proof takes effect, so that the injuring party must prove the truth content of its statement (OLG Cologne, judgement of 23.8.2000 – 6 U 181/99). That means that he bears the risk that the truth cannot be proven.
The BGH has for example classified disqualifying terms like “plagiarism”, “imitation”, “illegality”, “fraud”, “sleight of hand” or “official fraud” as damaging factual claims (BGH, judgement of 17.11.1992 – VI ZR 344/91; judgement of 22.6.1982 – VI ZR 255/80; judgement of 12.1.1960 – I ZR 30/58).
The essential difference of § 4 No. 1 to 2 is that the defamatory nature of the statement towards the competitor does not play a role in No. 2, but rather a tendency to damage the company is much more important there (BGH, judgement of 7.2.1984 – VI ZR 193/82). No. 1 also includes the protection against expressions of opinion and true factual claims and is therefore further than No. 2. It is true that the two areas of protection complement each other and that the claims arising from them can exist side by side.
III. COMPETITION IN TORT LAW
In relation to general tort law, fairness law is considered a special tort law. This means that a violation of the UWG law does not necessarily constitute a general offence. Furthermore, regardless of whether a business act according to § 2 I No. 1 is involved, a claim for defense can exist from § 1004 BGB analogously in combination with § 824 BGB because of credit risk, § 826 BGB because of intentional immoral damage as well as § 823 II BGB in the case of violation of protective law in connection with the offences of insult of §§ 185 ff. StGB (BGH, judgement of 26.1.2017 – I ZR 217/15; OLG Cologne, 6.2.2013 – 6 U 127/12). A claim for culpable violation of the general right of personality from § 823 I BGB and right to a name from § 823 I, 12 BGB can only exist if no claim has arisen from § 4 I No. 1 and 2 UWG (OLG Schleswig, judgment dated 30.11.2016 – 6 U 39/15). An exception is the protection of the right to the established and exercised business enterprise according to § 823 I, which is subsidiary to the laws on competition (OLG Cologne, judgement of 4.9.2015 – 6 U 7/15).
C. OFFENCES OF INSULT OF THE §§ 185 FF. STGB
Since the offences of insult of §§ 185 ff. StGB play a major role in the context of the tortious claim for damages from § 823 II BGB as protective laws of civil law, their scope of protection must be considered.
A defamation according to § 187 StGB is to be assumed if the perpetrator claims an untrue fact against a third party via another person against his better knowledge, which is suitable to disparage this person or to disparage him in his public opinion as well as to endanger his credit. A slander according to § 186 StGB is already present if the alleged fact is not provably true in the essential points. An insult in the context of § 185 StGB is the catching offense of these three offences. According to case law, it is an unlawful attack on the honor of another person by intentional announcement of disregard. Honor is a legal right protected by fundamental rights and the inner and outer value of a person. It is therefore its dignity and validity within human society. The disregard or disrespect can be announced orally, in writing, physically or in any other way.
The punishability within the scope of the offences of insulting behaviour is therefore excluded if the object of a declaration is true, even if it is defamatory. Furthermore, expressions of opinion are generally permitted within the framework of §§ 185-187 StGB. It is not unlawful if the announcement is a rebuking judgement about scientific, artistic or commercial achievements, reprimands from superiors or official assessments, or the representation of legitimate interests according to § 193 StGB (Werner Raik, Creifeld’s dictionary of law, 24th edition 2020, Insult, 3.b)). However, formal insults are always punishable under § 192 StGB.
In summary, it can be said that the criminal offences of insulting behaviour only prohibit the disclosure of untrue factual statements. This means that their protective effect is incorporated into civil law, but a claim for damages under tort law exists only if a violation of legal rights has occurred through untrue factual assertions. This is similar to the protective effect of § 4 No. 2 UWG, since this primarily protects against untrue factual claims with a tendency to damage the company. In addition, there is, however, the protection according to § 4 No. 1 UWG, which also covers expressions of opinion and true factual claims, if these damage the competitor. Consequently, this competition law regulation is much stricter with regard to insults in business dealings. As a businessman or woman, statements towards competitors which may influence his competitive position must therefore be made with particular care.
D. IMPUTATION OF CRIMINALLY RELEVANT ACTS AGAINST COMPETITORS
It is questionable what effects the imputation of criminally relevant actions to competitors has. Some guiding principles in this respect result from case law:
“A factual statement in the sense of § 4 No. 8 UWG (old version) can be ruled out and a value judgement can be present, if a criminally relevant accusation is raised, which requires a complex legal assessment and in which the evaluative content of the statement overlaps a possible factual core (here: “I consider this to be organized white-collar crime, in which investors are deliberately ruined”). (BGH, judgement of 31.3.2016 – I ZR 160/14).
“1. expressions of opinion which also serve competitive purposes are – in continuation of BGH MMR 2012, 101 – to be assessed more strictly than those which are not subject to the requirements of fairness law. 2. if a competitor is accused of “trademark theft”, this indicates dubious business conduct and could induce the interested public to turn away from the competitor accused of trademark infringement or not to turn away at all. The prerequisites for a reduction within the meaning of § 4 No. 1 UWG are thus met. (OLG Frankfurt, judgement of 25.4.2019 – 16 U 148/18).
“The designation of the plaintiff’s website as an “illegal intermediary website” represents an expression of opinion. The accusation of illegality is generally to be regarded as a value judgment, unless it simultaneously evokes in the addressee the idea of concrete events that are covered by the judgment and are accessible to a review of evidence. The accusation of illegality is (…) here not placed in the concrete context of the objective debate (…). Rather, the accusation of illegality is expressed in an unspecified and general manner, so that it must give the addressee the impression of a moral evaluation rather than a verifiable fact. (…) The statement in dispute that the defendant operates an “unlawful intermediary website” is therefore unlawful according to §§ 3 para. 1 i. in connection with § 4 No. 7 UWG (old version) as an unfair competitive act. (LG Frankfurt, judgment dated 18.5.2011 – 2/ 06 O 85/10).
“Furthermore, the term “sham organic seal” implies, beyond the unfounded factual claim, an unnecessary devaluation and reduction of the plaintiff’s quality seal. Even if the quality seal were in no way to provide for stricter quality criteria than for conventional mineral water, this would be communicated in a more restrained manner than by using the term “sham”, which is reminiscent of deception and fraud. (LG Hamburg, judgement of 9.7.2019 – 406 HKO 22/19).
“Even statements that are correct in terms of valuation – a certain business model is legally doubtful – can constitute an impermissible reduction (within the scope of) § 4 No. 7 UWG (old version) – of a company if the party making the statement primarily pursues the goal of inducing advertising customers of the attacked company to place their advertising with the company of the party making the statement. (OLG Cologne, judgement v. 4.9.2015 – 6 U 7/15).
In summary, the insinuations that a competitor is carrying out criminally relevant actions constitute expressions of opinion. They are distinguished from factual claims by means of the criterion that the allegation must be placed in a concrete context of a factual discussion. Value judgements or expressions of opinion are unspecific and general and give the impression of a moral evaluation rather than a verifiable fact. This means that imputations to competitors are generally covered by § 4 No. 1 UWG and are absolutely prohibited. If they represent a business act that impairs the competitiveness of the other entrepreneur, then claims for removal, injunction and damages against the injuring party arise. In addition, an incorrect factual claim can also be considered as a reduction – just like a true factual claim, if they are intended to damage the competitiveness of the competitor as a business act. It can therefore be concluded that insinuations and insults in business dealings are subject to strict punishment. Entrepreneurs may express objective criticism towards their competitors, but never with anti-competitive tendencies.