The District Court of The Hague ruled in its judgment of 19 September 2023 (which was only recently published) that a LinkedIn comment constituted unlawful comparative advertising.

It concerned a (rather frustrated) comment by one of the directors of a competitor of Kärcher to a LinkedIn post of the Royal Netherlands Army. In this post, the Royal Netherlands Army announced that Kärcher had won a tender in which both parties had participated. In the comment, the director expresses his dissatisfaction with the tender process. He commented, amongst other things (translated): "According to us and an independent auditor, European machine directives for food were not considered, nor accessibility, hygiene or cleanability and certainly not maintenance and efficiency. Cross-contamination: not looked at. Process stability: no importance. Any professional in the water bottling industry would be embarrassed about the choice of materials. And that's not just our opinion, you know it!'

The court agrees with Kärcher’s argument that the comment constitutes unlawful comparative advertising (art. 6:194a Dutch Civil Code ("DCC")). 

The term 'comparative advertising' is generally interpreted (very) broadly. It also includes cases that at first glance do not qualify as comparative advertising in the usual sense of the word. According to the court, it does not matter that the comment does not contain a (explicit) promotional advertising message or that Kärcher or its products are not expressly named in the comment. What matters is whether the public can trace the statement to the competitor. According to the court, the comment goes beyond simply expressing a personal opinion or frustration. By the wording chosen, the public will assume that the comment is based (at least partly) on objective data.

The court goes on to rule that the comment constitutes unlawful comparative advertising. Although the comment does not contain a comparison with Kärcher and its products, the court does find that the comment contains degrading statements in relation to Kärcher (products) (in violation of Section 6:194a(2)(e) DCC). 

The court imposes a ban on making (similar) statements about the tender on both the director ánd the company of which he is a director, because the company had not expressly opposed to the publication of the comment or its contents after receiving Kärcher's summons to take down the comment.

So, think twice before expressing your frustration on LinkedIn about a lost tender!