Lufthansa has been awarded an unexpected ruling against German website Urlaubspiraten, which prohibits the publishing of an Error Fares (or Mistake Fares) with a penalty of 250,000 EUR or six month of jail time! (via Wandering Aramean and Doctor of Credit).
The courts ruling is based on a German law called UWG which was born to avoid ‘unfair competition’ between different commercial enterprises. The whole idea is to level the playing field between companies but it’s been used for decades by money rich, large incumbents to get rid of start-ups and entrepreneurs. Just Google ‘Abmahnung’ to see one of the biggest misuses of this (originally well-intended) law.
In order to use the UWG law competitors need to be ‘competing’ i.e. need to be in the same industry and vie for the same customers. It is somewhat reasonable to argue that a travel deals website goes for the same customer as an airline (I have my reservations nevertheless) but that a travel deals website is ‘in the same industry’ (the court elegantly skirts that requirement) is insane.
Even when we agree with the courts’ classification – the defendant has made use of publicly available information (i.e. the Lufthansa website) and is advertising a fare (i.e. a transportation contract) by the airline. The defendant is no agent of the airline and is prohibit from ‘free speech’ that ONLY details publicly available information (without modifications by the defendant). All it publishes is a link.
The airline is free to accept the payment offered against the promise of transportation or not. If Lufthansa is making mistakes in their ‘realm’ by publishing incorrect fares – then it is their responsibility to deal with the aftermath. The law suits cites several hundred reservations and high legal fees. But guess what Lufthansa isn’t strapped for cash and can afford legal fees (or for a change just honor the tickets as they SHOULD DO)
The court agrees with Lufthansa’s argument that basically reads – if there would be no Internet the world would be a better place since we would all go to a travel agency to book airline tickets (and that way we would still earn more money since competition would be less!). So why don’t they just sue Google who lists Lufthansa in it’s search results? Clearly the argument is ridiculous and every judge should see that right away.
All Lufthansa does is use the German legal system (in an unethical way) to quieten a voice that simply shows their own mistakes.
I’d be hard pressed to describe the marketing tactics of the defendant as laudable or appropriate BUT this decision is a dangerous incursion into ‘free speech’ and some old-school judges in Germany’s overly conservative south need to learn how the Internet works.
The decision is open to appeal and it should be overturned!