Price comparison website must disclose commissions

Price comparison websites on the Internet are very popular because consumers expect them to provide an objective overview of the services and prices available on the market. However, the operators of such sites sometimes have the listed companies pay them a commission so that their offers are included in the price comparison. Whether and when the site operator must disclose this circumstance has now been decided by the Federal Court of Justice (BGH) with a view to transparency.

An association for the protection ofcompetitive interests objected to the fact that the operator of a price comparison website for funeral services did not inform users that only offers from funeral service providers that promise to pay a commission of 15% of the order value in the event of a contract conclusion would be included in the comparison.

The court's decision

The Federal Court of Justice (BGH) ruled by judgment of 27.04.2017 that the fact of commission payment must be disclosed in order to prevent consumers from being misled. According to the relevant statutory provision, anyone who withholds material information from the consumer that they need to make an informed commercial decision acts unfairly and thus in a manner contrary to competition law. The information must be provided in a clear and comprehensible form.

According to the court's reasoning, the commission dependency of the listing constitutes material information because the user is seeking a quick price comparison and assumes that the comparison covers almost the entire market environment available on theInternet. In light of the circumstances of the individual case and taking into account the interests of both parties, it can therefore be expected of the operator to correct the expectations of its users if they do not correspond to the true state of affairs. The information must be provided in such a way that the consumer can perceive it. A reference on a remote page of the website without a prominent indication thereof would not be sufficient.

In the court's view, the provision of the information is not opposed by any material interests of the site operator. Insofar as interests of the operator are identifiable, these would not outweigh the interest of consumers in making an informed market decision.

Conclusion

Misleading practices can consist not only of actions and statements by competitors, but also the opposite, namely omissions. From the consumer's perspective, it makes no difference whether they are given false information or receive no information at all regarding material information, thereby maintaining an existing misconception. When information must be provided, that is, when it can be expected, may be difficult to assess in individual cases. As a rule of thumb, the consumer must be informed of all circumstances regarding the presence or absence of which they would incorrectly assume under the circumstances and which are material for the purchasing decision.