*OLG Frankfurt: Explanatory Message Triggered by ‘Mouseover’-Function Not Sufficient To Clarify Misleading Ad

In connection with his reply to a post from one week ago ananalysing the Instant Preview function for ads on Google, Dr. Stephan Ott has pointed out a very interesting German decision by the OLG Frankfurt (OLG Frankfurt a.M. 23.2.2011, Az. 6 W 111/10) concerning the mouseover function. To see an example of the mouseover function, place your mouse cursor >>here<<.
The court in Frankfurt am Main had to decide whether a by itself misleading ad (“We’ll beat any price“) could get sufficiently clarified by an explanation-message (“Should you find any German jewellery shop offering the same product for a lower price, you’ll get the same price minus 1%“) that only appeared  once the user moved the mouse cursor (mouse over effect) over the ad.
The court found the clarification to be irrelevant (“unerheblich“) as the users would only spot the clarification once they had already moved their mouse-cursor over the ad and it would rather happen by chance (“hängt eher vom Zufall ab“) that the users would actually spot the clarification-message.
Legal analysis
Other than the author which stated that the preview function could indeed decrease the chance of users being mislead about the origin of the goods and services advertised, Ott is of the opinion that the preview function for ads will only have little to no effect as the function is not switched on by default but has to be enabled first by the user. Although Ott and the author are obviously not agreeing on this issue, both however agree that the website the ad is linked to should under any circumstances also be considered.
When analysing the potential impact of the OLG’s decision it appears that if the courts find a clarification based on the mouseover-function to be no valid way of informing users, the preview function might also not satisfy the courts’ requirements as the mouseover function, other than the preview function, is by default enabled in most browsers.
At the same time the decision appears a bit harsh taking into account that in the off-line (“brick and mortar“) world a little asterisk (*) at the end of a commercial message in a printed ad has been seen sufficient to point out e.g. the special details of a promotion the mouseover and the preview function should not be dealt with differently.
The OLG Hamm ruled in a similar case last April that no asterisk was needed in an Google AdWord to point out the special circumstances of a promotional offer (“100 condoms starting at 3,95€“).
The author is furthermore of the opinion that any additional information being displayed once the user moves his cursor over the ad should be seen at least as an equivalent of an asterisk as the user under normal circumstances (no touch screen) is required to move his cursor over the ad before even being able to activate the ad’s link. In the offline world on the contrary a customer might have to actually rush to the shop just to find out about the details of the promotional offer.

1 Response to “*OLG Frankfurt: Explanatory Message Triggered by ‘Mouseover’-Function Not Sufficient To Clarify Misleading Ad”

  1. 1 *Instant Preview Now Enabled -Almost- By Default « Austrotrabant's Blog Trackback on 04/07/2011 at 09:04

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