The court held that when commenting on a business competitor, and this comment does not allow the reader to formulate or reach an objective and factual conclusion, then the freedom of speech protection is not as important as the protection imbedded in comparative advertising and fair commercial competition law.
The court discussed how, if an advertisement discredits a competitor, the court will make an overall assessment of the advertisement and consider the particular circumstances of the case, the content and form of the advertisement and criticism of the competitor, how successful the advertisement was commercially, and the average understanding of the targeted consumers (in the case at hand - the readers of the newsletter).
Additionally, the court held that the defendant, in linking to the 2 articles, took on their perspectives as his own - by including them in his newsletter, they represented his opinion. That means that they are no longer neutral market assessments protected by free speech, but instead are part of defendant's business practices because they are linked to his website offering his coaching services.
The court also discussed that when evaluating the discrediting of a competitor, the court looks at how useful the information is to the receivers of the information, if there is a justification for the information, if the criticism is presented in an objective, scientific way, and how much the competitor is actually discredited.
Furthermore, when balancing the rights within the law of comparative advertising with the right to freedom of expression, the court looks at whether it has to do with a private disagreement, whether one party is pursuing its own interests, or if it in connection with a meaningful public issue (political, economic or cultural concern of the general public). Therefore, an expression of an opinion (i.e. discrediting a competitor) that simultaneously serves a commercial interest is more strictly scrutinized than an expression, which is not subject to fair business law behavior but instead to tort law.
Finally, the court found that it matters greatly whether it is a blanket discrediting of a competitor without listing concrete and specific reasons for discrediting the plaintiff. It is in the interest of the consumer to be informed about concrete defects, drawbacks and this might allow, in some cases, for negative comments about a competitor. These comments, however, must contain only what is necessary to protect the consumer and must be factual. Moreover, to justify a discrediting representation of a competitor, it must be that without this discrediting, the consumer could be damaged or violated. A vague and blanket criticism, without concretely pointing out specific grievances, does not justify the massive detriment caused to the competitor.
URL: http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&Datum=Aktuell&Sort=12288&Seite=1&nr=58272&pos=32&anz=562
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