By attorney and partner Anders Stoltenberg (H) and Tobias Egeris Svendsen, senior paralegal/law student, Sønderby Legal
It is important for businesses to know the limits of how critical they can be about their business partners when disagreements arise. In some cases, critical dialogue in public goes too far and triggers breach of contract and possible termination of the cooperation. The latter was invoked by a dominant company in a recent case before the Maritime and Commercial High Court, where critical statements from a company against the dominant partner ended a long-standing collaboration.
The circumstances of the specific case were, in broad terms, that the company published harsh criticism of the partner on its website. The background for the company’s criticism was that the parties’ agreement for the future would be changed significantly on a number of central points. The changes were decided solely by the partner, and they impaired the company’s future earning potential.
The criticism on the website began with the headline “Partner Reintroduces Illegal Monopoly“, and the text included “an attempt to illegally and indecently take over the private dealers’ customers, business connections, international sales organizations, subsidiaries, etc. without providing compensation“. The company continued its criticism of the partner, who, according to the company, had “the intention to expropriate the private dealers’ business without compensation, in order to try to take over their export success themselves“. These plans were finally called “one of the biggest coup attempts in broad daylight that has ever been in Danish agriculture“. The criticism thus contained significant and serious accusations against the partner.
The court agreed with Sønderby Legal that the company’s statements could not justify a termination. The court therefore found that the termination was illegal and in violation of competition law. The partner was then ordered to pay millions in damages to the company for lost earnings. Regarding the critical statements, the Maritime and Commercial High Court placed particular emphasis on the complex nature and the fact that the post contained a detailed description that the criticism was at the company’s own expense. The Maritime and Commercial High Court stated:
Considering… the complex nature of the alleged illegal relationship in the post on the website, the court does not find it proven that the company with the post had the intention to unlawfully defame the partner, cf. section 267 of the Criminal Code.
The company is therefore acquitted of violating section 267 of the Criminal Code.
As far as the question of whether the company acted in violation of the Marketing Practices Act’s rules by what was stated in its post on its website on January 4, 2016, it is noted that there is a detailed account in the post of the basis for the statements made, and that it appears that it is the company’s own subjective assessment. In view of this and an assessment of the text in the post as a whole, the court finds that the text in the post, either in its entirety or in part, was misleading, aggressive or unfair in violation of section 20 of the Marketing Practices Act or discrediting or disparaging of the dominant company’s activities in violation of section 21 of the Marketing Practices Act or otherwise in violation of section 3 of the Marketing Practices Act. (The Maritime and Commercial High Court’s reasoning for the critical statements not being unlawful)
The company was therefore – as claimed by Sønderby Legal – acquitted of a number of claims that the dominant company had made. In addition, the company obtained compensation for the termination of the cooperation.
