Austria: Job advertisements on social media can be anti-competitive

 

The Unfair Competition Act (UWG) prohibits, among other things, misleading business practices. This is the case, for example, if advertising contains incorrect information or is otherwise likely to deceive market participants with regard to the product in such a way that they are led to make a decision that they would not otherwise have made. Therefore, if a company seriously and objectively verifiably claims a leading position in its advertising (e.g. market leadership), this must correspond to the facts. Claiming a leading position, for example as Austria's largest company, thus presupposes that there is actually a steady and considerable lead over all of Austria's competitors.

The Supreme Court (OGH) recently ruled (OGH 25.04.2023, 4 Ob 223/22f) that these principles also apply to job advertisements on social media. Specifically, one company has described itself as Austria's largest privately owned company in the field of building automation and technology in the context of job advertisements on Facebook and LinkedIn. According to the Supreme Court, these statements contain, at least in essence, concrete and verifiable factual allegations and can be expected to have a considerable special economic position of the advertising company in terms of scope and duration, which secures it a considerable and lasting advantage over its competitors.

The fact that these statements were made in job advertisements on social media platforms does not change the fact that this happened "in the course of business": For example, the postings on both Facebook and LinkedIn are in principle not limited to being read only by specific job seekers, or are only intended for or addressed to such specific persons, but were generally openly accessible to any platform participant. These postings are to be regarded as acts, omissions, conduct or declarations, commercial communications including advertising and marketing in competition for the most qualified employees possible as business practices within the meaning of the UWG that are sufficiently closely related to the promotion, sale or delivery of a company's services and products.

If the top position claimed in the context of the job advertisement does not correspond to the facts (which, however, has not yet been established in the above-mentioned proceedings), this statement would be inadmissible under the UWG.

In order to avoid legal disputes with competitors, it is therefore important to pay very close attention to how one's own company is presented and advertised when it comes to job advertisements.

 

For further information, please contact:

Johannes Paul, Partner

Zumtobel Kronberger Rechtsanwälte OG, Salzburg

e: paul@eulaw.at

t: +43 662 624500

 

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