Misleading Price Information in Price Comparison Engines

This insight is not new, but it has now been decided by the courts of last instance: the prices and other information – such as shipping costs – deposited by an online retailer in a price comparison engine must correspond to the prices actually charged in the retailer's online shop. This is particularly important to observe in the case of price increases, since these can result in the price comparison engine displaying a lower price than the price being charged in the shop.

The Federal Court of Justice (BGH) had to determine whether the price indication in the price comparison engine was misleading and thereforeanticompetitiveif the price in the online shop was first increased and then reported to the search engine. In its decision of 11.03.2010 (I ZR 123/08), the court has now answered this in the affirmative. The user of aprice comparison portal on the Internetwould expect the greatest possible currency and would therefore assume that the goods displayed in the search results could be purchased at the stated prices. Furthermore, the price of a product on comparison portals is the decisive criterion by which the user makes the decision to visit a particular online shop. If it then turns out that the product is not available at the stated price, the user would be misled.

The customary disclaimer "All information without warranty!" does not change this. This has only the consequence that the seller, according to the principles of contract law, does not have to sell the goods at the lower price if he does not wish to do so. However, this circumstance is of no relevance to the fact that the user has been misled by the erroneous price indication, which causally led to a visit to theonline shop of the retailer. Furthermore, it does not help the retailer if he clears up the misunderstanding in time before the order – usually in the context of the product presentation. The so-called bait-and-switch effect of the erroneous price indication has already taken effect by that time, since the user is dealing with the retailer's product offering, which he might otherwise not have done.

It is therefore strongly recommended that in the event of price increases, the price information in the price comparison engine should be changed first and then the price in the shop. In the case of price reductions, of course, the reverse procedure must be followed. As a rule of thumb, it can be said that when prices change on the price comparison page, the lower price must never appear there.