Do not play with the scapegoat!

May a publisher that describes itself as the editorial mouthpiece of numerous savings banks refer to a major German bank as the "scapegoat of the banking industry" in an editorial article, or does this constitute gross disparagement of the other financial institution? The Higher Regional Court (OLG) Frankfurt a.M. has now decided whether this amounted to unfair disparaging criticism.

The operator of a trade information service publisher with several editorial offices, which described itself as the "editorial mouthpiece" of numerous savings banks and cooperative banks, was sued by Commerzbank for injunctive relief, disclosure and damages. The publisher had openly criticised in its weekly newsletter "Bank intern" that the major German bank, which had received government financial assistance during the financial crisis, had engaged in such extensive sports sponsorship at the same time. The publisher referred to Commerzbank as the "scapegoat of the banking industry" in this context and recommended advertising partners to end their cooperation with the major German bank.

The Regional Court (LG) Frankfurt a.M. dismissed Commerzbank's competition law action on the grounds that there was no competitive relationship between the bank and the publisher. Nor was there any infringement of the right to corporate personality, as the line to disparaging criticism had not been crossed.

Commerzbank, now branded as the scapegoat, had this decision reviewed by the Higher Regional Court (OLG).

Court's decision

And it was right! The Higher Regional Court (OLG) Frankfurt a.M. ruled by judgment of 18.6.2015 – Az. 6 U 46/14, that the designation of Commerzbank as scapegoat and the recommendation to end cooperation with the bank simultaneously constituted unfair disparagement of Commerzbank and deliberate obstruction in the nature of a boycott call.

Although the publisher and Commerzbank were not direct competitors, there nevertheless existed a similar relationship between the two parties in that the publisher clearly had the intention of promoting competitors of Commerzbank. This third-party sales promotion nexus was evident because the publisher described itself as the "editorial mouthpiece" of numerous savings banks and cooperative banks. A reasonable reader could readily recognise that the call to Commerzbank's advertising partners to no longer cooperate with the bank was intended to have an effect on the credit institutions close to the publisher in their new customer acquisition.

Finally, the statement that the claimant was the "scapegoat of the banking industry" also spoke for a third-party sales promotion nexus and thus for a competitive relationship between the bank and the publisher. The statement constituted a particularly gross disparagement of the bank and would not be understood euphemistically by the public.

Moreover, the publisher's call amounted to an unfair boycott call by the trade information service publisher. Within the framework of freedom of opinion and press freedom, a boycott call may admittedly be justified in exceptional cases if the person acting has the intention of pursuing objectives of public interest, such as political or cultural concerns. However, this was not satisfied in this case, not least because the publisher had not addressed the general public, but rather immediate decision-makers of Commerzbank's advertising partners in order to move them to make an economic decision that was clearly also intended to benefit the financial and economic interests of the savings banks and cooperative banks.

Conclusion

A competitive relationship may not only exist between direct competitors. It is sufficient that an action, viewed objectively from the perspective of a reasonable recipient, is at least also directed at promoting the sales of a third party. If this third-party sales promotion intention is furthermore pursued through disparagement of the competitor, competition law claims for injunctive relief are then established.