GE: Publicly Issued Expert Opinions May Be Quoted

Oct 28, 2022 Benn-Ibler Rechtsanwälte

Anyone who publicly gives expert statements must accept being quoted in an advertisement, even by name. However, the quote must be correct and it must be made obvious that the average reader would not assume that the statement had been paid for, says the German Federal Court of Justice (Bundesgerichtshof, BGH). In such cases, there is no right to injunctive relief even if the author's name is used without their knowledge.

In the case to be decided, a doctor had made a statement on irritable bowel syndrome at a press conference. He was subsequently quoted without his prior consent in an advertisement published in a German Medical Journal featuring the difficulties of diagnosing irritable bowel syndrome. The physician’s name was used in the advertisement. He considered this to be damaging to his reputation because did not want to be associated with the product manufacturer under any circumstances, so the physician filed a lawsuit for injunctive relief. However, this was unsuccessful both in the lower courts as well as before the German Federal Supreme Court.

In the German Federal Supreme Court’s opinion, no injunctive relief can arise from Section 12 sentence 1 case 2 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) on the grounds of unauthorised name appropriation, which would only apply if the product manufacturer had used the physician’s name to specifically identify the product in the advertisement.

The BGH also rejected a claim for injunctive relief under Sections 1004 (1) sentence 2, 823 (1) BGB. Unauthorised use of a name for advertising purposes would indeed support that claim. However, according to the German Federal Supreme Court, the public's interest in information, which deserves protection, outweighs the interests to be considered. The advertisement had addressed the diagnostic and therapeutic problems of irritable bowel syndrome and linked this issue to the expert statement previously given by the plaintiff. The advertisement might give interested professionals an impetus to reconsider their own treatment approach or to take a look at the treatment options mentioned and, if necessary, to obtain further training.

The German Federal Supreme Court also clarified: A physician who places themself in the public eye by making professional statements must accept any such reference appearing in advertisements, insofar as the expert statements attributed to the physician are quoted accurately.

BGH, I ZR 171/21 (28 July 2022)