"Code of Honour" for dentists?

The professional association of dentists in Schleswig-Holstein is not permitted to use the feature "Code of Honour" as a search criterion within the "Practice Search" function. The Schleswig-Holstein Higher Regional Court (OLG) has confirmed that the use of this feature as a search criterion is contrary to competition law and must therefore be discontinued.

The Dental Chamber of Schleswig-Holstein offers consumers a practice search within the scope of its website by means of which dentists can be searched according to the criteria of name, first name, location, postal code, specialist dentist and practice specialities. In addition, the criterion "Code of Honour" was also listed, which, in contrast to the other search criteria in the mask, was already provided with a tick mark. The so-called "Code of Honour" was previously adopted at a meeting of the Dental Chamber and is intended to embody the core of the understanding of the freelance dental profession in relation to patients, employees, colleagues and business partners.

A dentist from Schleswig-Holstein who had not signed the code itself opposed the use of the "Code of Honour" as a search criterion by way of an interim proceedings. Successfully.

Court decision against the "Code of Honour"

After the dentist was already successful at first instance, the Schleswig-Holstein Higher Regional Court (OLG) confirmed the decision of the Regional Court (LG) Kiel by judgment of 12.05.2016 – 6 U 22/15 (press release 07/2016 of 19.05.2016).

By using the feature "Code of Honour" as a criterion of the "Practice Search", the Dental Chamber influenced the decision of consumers to orient their search (also) according to this criterion. In doing so, it granted those dentists who had signed the "Code of Honour" an advantage in competition for patients. By using the feature "Code of Honour" alongside the other criteria and the pre-selection in the search mask, the impression is created that the "Code of Honour" is as significant for the practice search as, for example, qualification as a specialist dentist. This impression is misleading and does not accord with the actual circumstances.

All components of the "Code of Honour" that relate to the dental treatment activity itself are, namely, medical and professional law self-evident matters for which, on legal grounds, advertising in isolation is not permitted. However, the average consumer cannot recognise this.

The misleading effect does not cease simply because the consumer can remove the pre-selected tick mark from the "Code of Honour" feature and can obtain information elsewhere on the website about the content of the "Code of Honour". Rather, the consumer relies on the Dental Chamber having designed the "Practice Search" objectively and appropriately in the interests of consumers. The misleading use of the "Code of Honour" feature is therefore capable of inducing the consumer to conclude a treatment contract only with those dentists who have signed the code, which the consumer would otherwise not have done.

Conclusion

By using the additional search criterion "Code of Honour", the Chamber has in the present case granted those female and male dentists an advantage contrary to competition law who have signed the code, since the criterion suggests a significant qualification of the respective practitioner. In fact, however, the components of the "Code of Honour" are self-evident matters that have merely been documented in writing. Since the consumer cannot recognise this in the context of the practice search, the search criterion is misleading and therefore contrary to competition law.