OGH: Sec. 1 UWG - Disparagement of the competitor

Sept 1, 2021 Benn-Ibler Rechtsanwälte

The competitor may not disparage his rival competitor out of hand and harm him in a business sense, even if a business-damaging allegation is true. An unnecessary and unobjective disparagement, which may contain a kernel of truth, is contrary to fairness. This disparagement can be made by factual assertions as well as by value judgments.

In the present case, the plaintiff operates an Austrian cable network and the first defendant is a media company that operates a television channel. An Austrian cable network operator sued a media company and its parent company to refrain from making certain statements that were harmful to its business. The defendants had expressly invited the plaintiff's customers to make complaints to the plaintiff. This constituted unfair interference with the will of the customers, which was likely to disrupt their business relationship with the plaintiff, especially as it was alleged that the plaintiff, as a "monopolist", abused its market power to prevent the distribution of journalism and that, in addition, it only operated a poor cable network into which a channel of the defendants was not fed. In any case, this constituted an obstruction within the meaning of Sec. 1 of the Unfair Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb, UWG).

The first defendant correctly informed the plaintiff's customers that the feed of the defendant's station was coming to an end. The plaintiff may also be a "local monopolist" with regard to a certain type of service. However, the statement that the latter willfully prevents the distribution of quality journalism must be understood in its overall context as an accusation against the plaintiff. This representation, combined with the invitation to complain and the concealment of the (financial) background, namely the disagreement about the feed-in fees to be paid, disparages the applicant - according to the Austrian Supreme Court - in a sweeping and unobjective manner.

However, the defendants had not communicated the fact that the discussion about the possible feed-in was also determined by tariff negotiations, which made the statement complained of unfair due to the incompleteness of its communication within the meaning of Sec. 1 (1) (1) UWG. Without this additional information, the plaintiff's actions must appear arbitrary and cast its conduct in a negative light.

The statement that the defendant's programs could be received "in every good cable network ...", provided one was not a customer of the plaintiff, could only be understood in the reverse conclusion that the plaintiff does not operate a good cable network. This also constitutes an unobjective disparagement by the second defendant.

Furthermore, the statements that the plaintiff did not focus on the interest of its customers and that it was "acting out of date" were qualified as disparaging and unobjective assessments. Price negotiations by the plaintiff are indeed in the interest of the customers and are not to be regarded as outdated. The plaintiff was also to be upheld on this point.

OGH 4 Ob 208/20x (22.06.2021)