Delivery portal liable for third-party providers

A delivery portal based in Berlin is liable for incorrect information and labelling of partner restaurants within its internet platform.

The Association for the Prevention of Unfair Competition in the Food and Catering Industry e.V. (VBuW) has objected to the contents of a Berlin online delivery portal. Essentially, information in the individual offers of the participating restaurants was affected. For example, information on base prices and warning notices for children, pregnant women and breastfeeding women on beverages with elevated caffeine content were missing. In addition, information on alcohol content as well as the labelling of allergens and additives were incorrect.

The operators of the delivery portal denied their own responsibility for the content, since this came from the participating restaurants. However, the restaurants did not enter the data themselves. Rather, the operators entered the information previously transmitted.

Decision of the Higher Regional Court – Delivery portal liable itself

By Urteil vom 21.06.2017 – 5 U 185/16 the Higher Regional Court (Kammergericht) essentially confirmed the view of the VBuW.

The delivery portal is both objectively and from the customers' perspective integrated into the delivery and processing operations of the suppliers to such an extent and degree that it – far exceeding the services of a conventional internet portal – appears as a co-supplier, which is why the offers are also those of the delivery portal.

The delivery portal offered the goods itself by writing the restaurants' offers into its own Internetauftritt. The fact that these are information from the participating restaurants that the delivery portal copied does not change this. For it is the delivery portal alone that has controlling influence over the content of its Internetauftritt, and not the suppliers. The suppliers have no influence in this regard on the Internetauftritt, in particular also no access for the purpose of their own correction of information concerning them.

Conclusion

Price indication and food labelling regulations also apply in the context of online delivery services. Not only must the individual participating restaurants carry out compliant labelling of the products offered, but possibly also the delivery portals themselves. This depends primarily on the extent to which the operator of the portal can influence the offers.