Once information is entered into the Internet’s most popular encyclopedia Wikipedia it gains an immense potential of distribution. The high number of users and the easy accessibility in combination with the impression of neutrality an encyclopedia communicates make it highly desirable for companies to be positively depicted in articles about the company itself or its products.
The Higher Regional Court of Munich decided on May 10th, 2012 that positive display of a company’s products in a Wikipedia article that was amended by the director of the company constitutes disguised advertising and thus unfair competition as defined by Section 4 No. 3 UWG (the German Law Against the Unfair Competition). It held that for evaluating the “disguised” character of a business-to-consumer commercial practice, the commentaries in the discussion section must not be taken into consideration.
Composing or amending a Wikipedia article can constitute a commercial practice. A commercial practice is defined as any action by a person in favor of a company owned by the person or a third party before, during or after a commercial transaction that is objectively connected to supporting sale or acquisition of goods or services (Section 2 No. 1 UWG). The objected article states that the company’s products were accessible via national pharmacies whereas importing similar drugs based on similar ingredients from India was not possible. Therefore the article tends to – besides potentially being general consumer information – support the consumers’ decision toward buying the company’s products.
An advertising practice is disguised in term of Section 4 No. 3 UWG, if the consumers cannot clearly identify the commercial character of an action. Section 4 No. 3 UWG implements Article 7 No. 2 of the Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market, according to which a misleading omission is given if the commercial intent of an action is not indicated. As it cannot be expected that the averagely informed, attentive and understanding Internet user takes notice of the entries in the discussion section those entries must remain unregarded in the evaluation of the misleading character – even more so as the commentaries usually appear with some delay. And although users are aware of the fact that can be composed or amended by anyone, they do not expect the articles to contain advertisements but rather to be the result of neutral research of third parties – including the correct reproduction of controversies.
This interpretation and implementation of Section 4 No. 3 UWG does not violate the author’s basic right of Freedom of Speech. The composition of Wikipedia articles underlies the Freedom of Expression protected by Article 5 Subsection 1 of the German Constitution but is acceptably limited by the regulations concerning unfair competition.
The article can also have a noticeable effect on the average consumers’ decision necessary according to Section 3 Subsection 1 UWG to be defined as unfair competition.