Disparaging statements about competitors: reviewing section 7 UWG

Section 7(1) UWG concerns facts asserted or disseminated for competitive purposes about another business, the person of its owner or manager, or another business’s goods or services. The statement must be capable of harming the business operation or the credit of its owner. The asserted fact must also not be demonstrably true.

The provision therefore requires more than a negative tone or strong opinion. The first question is whether the challenged expression contains a verifiable factual core. Its commercial setting also matters. A statement in a sales discussion, industry presentation, circular email or advertising campaign may differ from a private remark without a competitive purpose.

The subject of the statement must be identified precisely. Does it concern service quality, solvency, an alleged breach by management or reliability in performing contracts? Only the actual wording shows which fact would need to be proved or disproved.

An isolated quotation can alter the meaning of a statement. Preserve not only one sentence but also the text before and after it, subject lines, images, links and identifiable recipients. For a website or social platform, record the URL, date and visible page elements. For a presentation, the slides, invitation and audience may be relevant.

Oral statements require a different form of evidence preservation. Promptly record who was present, which words were used and which questions or answers shaped the discussion. A later summary such as “the competitor badmouthed us” is too imprecise for legal review.

Commercial consequences should also be added to the chronology. Customer enquiries, cancelled orders or changed terms may supplement the facts. They do not replace proof of the challenged statement and its distribution channel.

Section 7(2) UWG contains a special rule for confidential communications where the sender or recipient has a legitimate interest in the communication. In that situation, an injunction claim is available only if the facts were asserted or disseminated contrary to the truth. Damages additionally require that the sender knew or ought to have known that the facts were incorrect.

Whether a communication was actually confidential and served a legitimate interest cannot be inferred from a heading such as “confidential” alone. The recipients, occasion, content and any further distribution must be established. An internal risk report, a communication to a contracting partner and a broad sales circular have different starting points.

The affected business should therefore distinguish the first communication from every later distribution. Who made the original statement, to whom was it directed and how did it reach further people? This chain may be decisive for the claim and the evidence.

Where its conditions are met, section 7(1) UWG provides for damages under section 16(2) UWG. The injured party may also seek to stop the assertion or dissemination. The statute also mentions retraction and publication of the retraction. The appropriate claim depends on the wording, reach, truth, risk of repetition and provable commercial effects.

Interim relief may be considered where dissemination is continuing or imminent. Section 24 UWG permits interim injunctions to secure injunction claims under the UWG even where the requirements in section 381 EO are not met. This does not make relief automatic. The claim, specific risk, requested restraint and evidence must still be assessed in the particular case.

Our topic on injunctions and interim relief addresses procedural protection separately. A possible damages claim for a competition infringement requires a coherent account of loss, causation and attribution.

Affected businesses often want to correct a false statement immediately in public. Factual information may be commercially useful, but it needs legal and communication planning. Naming people, making allegations and publishing new factual assertions can create another dispute. Public escalation may also interfere with evidence preservation and settlement.

Retraction and publication of the retraction under section 7 UWG must be distinguished from court authorised publication under section 25 UWG. A self drafted warning does not replace court authority either. The objective, audience and content of a response should be developed from the preserved facts.

Where the statement was allegedly made during targeted customer contact, the contact process itself may also matter. Our article on approaching a competitor’s customers explains that separate framework.

Useful material includes the complete challenged communication, details of the sender and recipients, its date and distribution channel, and a chronology of later responses. For online content, preserve the URL and time. For oral statements, identify possible witnesses and retain an unprompted note of the discussion.

Also identify material that can test the truth of the assertion. This may include contracts, performance records, quality documentation, correspondence or accounting records. Confidential information should not be forwarded without control. For an initial assessment, it is enough to describe factually which evidence is available.

Commercial consequences should be documented specifically but cautiously. Record customer questions, cancellations, price changes or other responses with their date and source. Timing may be an indicator, but it does not replace analysis of causation and legal attribution.