Consideration for a Facebook Like constitutes a breach of competition law

A high number of Facebook Likes can make a strong impression on consumers for traders. That advertising with the grant of consideration for a Facebook Like is not a good idea, however, is demonstrated by a recent decision of the Regional Court (LG) Bonn.

The Wettbewerbszentrale (competition authority) proceeded against a pharmacy and demanded the cessation of various advertising statements. In a post on its website, the pharmacy advertised a loyalty points scheme in which customers could collect so-called "Taler" and subsequently exchange them for prizes.

As part of this campaign, the pharmacy advertised that customers would receive two Taler each in return for a Facebook Like. The motto was thus: Consideration for Facebook Like.

In this advertising, the Wettbewerbszentrale saw a breach of competition law. The announcement to grant two instead of one "Taler" for Facebook Likes was said to be anti-competitive. Statements by third parties in the form of Facebook Likes appeared objectively in the advertising and would therefore be valued higher in general than statements made by the advertiser themselves.

The Wettbewerbszentrale took the view that advertising with paid endorsements was impermissible. For the pharmacy thereby remunerated the expression of an endorsement that was not objective.

The Wettbewerbszentrale subsequently sent a cease and desist letter to the pharmacy and called upon it to issue a binding declaration of non-infringement subject to penalty. Since the pharmacy failed to comply, the Wettbewerbszentrale brought an action before the Regional Court (LG) Bonn.

Consideration for a Facebook Like impermissible

The Regional Court (LG) Bonn (judgment of 04.12.2020, case number 14 O 82/19) decided that the practice of granting consideration for a Facebook Like is misleading and thus constitutes a breach of competition law.

In so doing, the judges referred to the principles developed in case law concerning ratings. It is recognised in case law that advertising with paid endorsements by third parties is impermissible if this circumstance is not disclosed.

For statements by third parties appear objectively in the advertising and would therefore generally be rated higher than statements made by the advertiser themselves. A customer who makes an endorsement must therefore be free and independent in his or her judgment from the advertiser.

Facebook Likes and ratings are comparable

The Regional Court (LG) Bonn also applied these principles to the Facebook "Like button". This too contains a positive evaluation within it, even if it is not connected with any further text and no verifiable facts are associated with the expression of "Likes".

In this connection, the judges pointed to the fundamental significance of Facebook Likes: The number of "Likes" generally reflects a certain popularity in the public mind, which also indirectly allows conclusions to be drawn about customer satisfaction.

Furthermore, the court pointed out that it was irrelevant whether further own financial resources might need to be deployed in order to redeem the "Taler". For this does not call the advantage of the Taler into question.

Finally, the Regional Court (LG) Bonn placed the proffered consideration for a Facebook Like on the same level as advertising with purchased Likes, which is also a breach of competition law.

Conclusion

Advertising with the grant of consideration for a Facebook Like on a Facebook business page is misleading and thus constitutes a breach of competition law.