In its judgment of 12 May 2026 – 4 UKl 3/25, the Higher Regional Court of Hamm ruled that the responses provided by a chatbot are to be attributed to its user as the user’s own conduct. If such responses breach competition law provisions, this therefore constitutes a separate breach of competition law by the user.
Fake specialists
Aesthetify GmbH is a company based in Germany that specialises in beauty treatments. On its website, it advertises various minimally invasive beauty therapies such as laser treatments and hyaluronic acid or Botox treatments. To market its services in a contemporary way, Aesthetify GmbH deployed an AI chatbot designed to answer visitors’ questions in real time.
However, the chatbot went too far. When asked whether the defendant’s two managing directors, “Dr Rick” and “Dr Nick”, specialists in plastic and aesthetic surgery, the chatbot replied in the affirmative and stated that both had “the necessary expertise and experience to offer and perform individual aesthetic treatments”. In response to further enquiries, the chatbot stated that both were specialists in aesthetic medicine and aesthetic treatments. The problem: whilst Dr Rick and Dr Nick are doctors, they do not hold specialist qualifications.
This prompted a warning letter association to initially seek an injunction against Aesthetify GmbH. Consequently, the chatbot was initially deactivated and subsequently reactivated following adjustments. From then on, the chatbot responded neutrally to questions regarding specialist status. Aesthetify GmbH also admitted that the chatbot’s statements were inaccurate, but refused to issue a cease-and-desist declaration. The case eventually reached the Higher Regional Court of Hamm through legal proceedings. The claimant specifically demanded that the company cease making the statements in question.
Company liable for AI response
Anyone wondering why a first-instance action is being heard directly before a Higher Regional Court should note, in this case, Section 6(1) sentence 1 of the UKlaG. Under this provision, for actions under the UKlaG, as is the case here, exclusive jurisdiction lies with the Higher Regional Court in whose district the defendant has its place of business or, in the absence of such a place, its domicile. In the present case, the claimant asserted claims for an injunction against the defendant, which has its registered office in Recklinghausen, under Section 2(1), first sentence, of the UKlaG in conjunction with Section 3(1) and Section 5(1) and (2)(3) of the Unfair Competition Act (UWG), thereby establishing the jurisdiction of the Higher Regional Court of Hamm at first instance.
The Higher Regional Court of Hamm also granted the claimant the injunctive relief sought. It held that the chatbot’s statements in question constituted unfair and therefore unlawful commercial acts. The court had no doubt that the chatbot’s responses constituted commercial acts by the defendant, as they had a sufficient connection to the defendant’s services. More importantly, however, is the court’s assessment that the chatbot’s statements constituted ‘conduct’ by the defendant within the meaning of Section 2(1)(2) of the Unfair Competition Act (UWG). Commercial acts by (legal) persons could, in fact, also be carried out with technical support or in an automated manner. The decisive factor here is whether the person behind the system is, on the one hand, responsible for the technical tool and, on the other hand, able to exert sufficient influence over it.
In the present case, the defendant stated that the AI operated largely autonomously and was not directed or controlled. However, the court saw this merely as an indication that individual responses were not directly controlled. The actual configuration of the chatbot, however, indicated “that the defendant was able to provide the chatbot with specific instructions for responding to user enquiries”, namely through the implementation of a corresponding prompt instruction and a downstream keyword filter.
The court thus also made it clear that the present case did not concern issues of obligations under competition law. An examination of these would only be relevant “if the infringer, through its conduct in the course of trade, creates a serious risk that third parties will infringe the interests of market participants protected by competition law”. AI, however, does not constitute a “third party”. Rather, the case concerns the defendant’s liability for a competition law infringement committed by him.
Practical note
The use of AI has become widespread practice and is always welcome where it leads to efficiency gains. However, the “black box problem” that remains common in this context – whereby it is generally not possible to verify what the algorithm does with the information obtained in the phase between input and output – does not shield users from the consequences under competition law. As long as the operation of an AI can be sufficiently influenced by its user, the result is attributable to the user as their own conduct. As it is virtually impossible to foresee every response from the AI when setting up AI assistants, this initially creates an unpredictable risk, as users are likely only to become aware of a competition law infringement by their AI through the “faulty” output. This makes it all the more important to act swiftly. Anyone faced with cease-and-desist claims in this context would be well advised to seek comprehensive legal advice in order to avoid further infringements and minimise the risk of liability.