Every year, Focus magazine publishes a list of the top doctors in Germany. Many doctors want to use this for advertising purposes and advertise their practices with a corresponding “Focus Top Doctors” seal. The Wettbewerbszentrale has now objected to the Focus seal as anti-competitive.
Focus Magazin regularly publishes a publication with recommendations for top doctors in Germany, in which the relevant doctors are listed.
For an annual license fee of € 1,900 net to the publisher, doctors on the list will receive a personalized Focus Top Mediziner seal for advertising purposes.
The Wettbewerbszentrale considers the seals used in advertising to be misleading to the target public.
Top position claims are made without there being a permanent lead based on objective and verifiable criteria. Rather, subjective criteria such as the evaluation by patients, the evaluation by colleagues and the own evaluation are decisive. The defendant’s evaluation system is not suitable for determining a permanent and significant qualitative advantage of the selected doctors over other doctors.
The Wettbewerbszentrale therefore requested that the publisher be prohibited from offering the seals to doctors.
LG Munich I on the Focus Top Mediziner seal
The Regional Court of Munich I(judgment of 13.02.2023) ruled in favor of the Wettbewerbszentrale.
The seals create the impression among the target public that the doctors in question, who are designated or recommended as “TOP doctors”, have been awarded on the basis of a neutral and objective examination and thus occupy a leading position among doctors in the same specialist discipline.
The seals awarded by Focus against payment of a not inconsiderable license fee have the appearance of a test mark and are also used as such in the media for advertising purposes. The seals would be perceived by the public in a similar way to Stiftung Warentest test seals. They would therefore assume that the doctors in question had been awarded on the basis of a neutral and objective test.
Instead, criteria based exclusively on subjective elements, such as colleague recommendation or patient satisfaction, would be taken into account.
It is true that doctor rankings and lawyer rankings are generally permissible as value judgments. However, the licensing of seals of approval for a not insignificant fee, which give the impression of an objective test mark, leaves the area of editorial, evaluative assessment covered by freedom of expression and freedom of the press and creates the misleading impression that there are actual, objectively verifiable criteria that led to the award of the seal of approval.
The Focus Top Mediziner seal does not give the impression that it is based on a mathematically incomprehensible evaluation decision. The supposedly objective quality assessment provided by the seal is in fact a purely subjective one that depends on many factors that cannot be influenced by doctors and their services.
Conclusion
The ruling by Munich Regional Court I is likely to cause some excitement among affected doctors and lawyers – for whom there is a comparable Focus seal. However, the judgment is not yet legally binding and an appeal is likely to be lodged.
Lists of doctors and lawyer rankings are and remain permissible even after the ruling. However, such seals must not give the impression that they are a seal of approval if there is in fact no objective review.
