Purchased doctor rankings must be identified as advertisements

With the help of KLAKA, Centre for Protection against Unfair Competition prevails over “jameda”

Munich, 15.10.2015: The doctor recommendation portal “jameda” has been prohibited by court from placing doctors at the top of the rating scale only because they have paid for this ranking. Purchased top rankings must be clearly identified as advertisements. Otherwise, there is the risk that consumers who are looking online for a highly-rated doctor at www.jameda.de will be misled. Now that jameda has withdrawn its appeal against the decision of the Munich I Regional Court in March (case No. 37 O 19570/14), the decision has become final. In today's in-person hearing, the Munich Superior Regional Court made it clear that it regarded the defendant's appeal as unfounded (case No.: 29 U 1445/15).

“Consumers must be able to determine beyond doubt whether the recommendation of the doctor has been determined by an independent rating or has been purchased,” states competition law expert Dr. Stefan Eck of KLAKA Rechtsanwälte in Munich, who obtained the decision for the Centre for Protection against Unfair Competition in Frankfurt am Main. “If a doctor has procured an advantage in the positioning by means of payments, this must be obvious to the users. This also applies as a matter of principle to other recommendation portals. They must clearly distinguish between paid rankings and independent ratings. However, such a clear distinction is particularly necessary in the health sector. For, according to established judicial practice, health is one of the most precious assets that require protection. Hence deception must absolutely be avoided particularly in this field.”

The online portal jameda uses patient ratings to draw up a ranking of doctors in various specialisations. However, doctors can purchase Gold and Platinum packages within which, in return for an extra payment, they can book the additional option of a “top specialisation ranking”. This makes it possible for the purchaser of the ranking to be presented above all other doctors even if the latter have in fact been better rated.

In addition, these top rankings are highlighted by means of colour and presentation. The users can only identify the true reason for the first place ranking by placing the cursor over the words “Premium Partner” appearing as a small note in the margin alongside these top ranked doctors. It is only then that there appears a text field with the information that these advertisements are an optional part of the purchased Premium packages and not related to the ratings or recommendations.

The Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main, represented in these proceedings by KLAKA, brought an action against this purchased ranking. The practice pursued by “jameda” communicated to the users a wrong impression of the rating and position of the doctor within the ranking and could mislead them. Moreover, the term “Premium Partner” could be misinterpreted as being a particularly award-winning quality of the doctor.

The 37th Civil Division of the Munich Regional Court upheld the Competition Centre’s argument at first instance, holding the jameda practice to be misleading and hence unlawful. The users looking for the best-rated doctors on the site assumed that the doctors in the top position were also those with the best ratings, according to the Munich judges. In addition, the specific design of the Internet site did not show sufficiently that the results lists generated were influenced by purchased placings.

Jameda is now obliged to change its presentation. This decision will also be of importance for other rating portals that might also fail to clearly identify ranking positions purchased in a similar manner as advertising.

Counsel for Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main e.V.:

KLAKA Rechtsanwälte, Munich
Dr. Stefan Eck, lawyer, partner