OLG Hamm, Judgment of May 12, 2026 – I-4 UKl 3/25 (not final)
The court ordered a cosmetic surgery clinic to cease and desist because its chatbot made false statements about the doctors.
The cosmetic clinic used an AI chatbot on its website that was intended to schedule appointments and answer questions. When asked, the bot replied that the two managing directors were „Fachärzte für plastische und ästhetische Chirurgie” or „Fachärzte für ästhetische Medizin” “- titles that the two doctors in fact did not hold. Although the chatbot was shut down, the company did not issue a cease-and-desist declaration. The Higher Regional Court of Hamm therefore ordered the company to cease and desist.
The court deemed the incorrect chatbot responses to be the company’s own misleading commercial acts under § 5 Abs. 1, Abs. 2 Nr. 3 of the German Unfair Competition Act (UWG).
The court clarified two points in this regard:
- The chatbot is not to be regarded as a “third party” within the meaning of competition law. It is part of the company’s business organization—its statements are attributed to the operator.
- Even correct programming does not preclude liability. Even if the chatbot was trained exclusively with accurate data sets, the company is liable for the false statements.
This means that companies cannot rely solely on compliance with their duty of care under competition law when using AI chatbots.
The ruling thus takes a clear position on the long-standing question of who is responsible for hallucinated or erroneous AI responses—the company, the AI provider, or “no one”? According to the Higher Regional Court, at least in competition law: Whoever uses a chatbot on their site bears the risk of hallucinations themselves.
Although the ruling was issued under competition law, the underlying principle—“Whoever uses the bot is responsible for its output”—can be applied to other areas of law:
- Data Protection Law (GDPR): Even in the case of automatically generated personal statements (e.g., false information about customers, applicants, or employees), the controller may be responsible for their accuracy. In addition, information obligations under Art. 13/14 GDPR and—in the case of automated individual decision-making—Art. 22 GDPR apply.
- AI Regulation (AI-VO/AI Act): Article 50(1) of the AI Regulation requires, effective August 2, 2026, that users be transparently informed that they are communicating with an AI.
- E-commerce / Consumer Law: Incorrect statements regarding products, prices, or delivery can, in addition to violations of information obligations that may warrant a cease-and-desist letter, also lead to contractual obligations, warranty claims, damages, or fines (UWG, PAngV).
- General Liability Law: Third-party personality rights, copyright, and trademark law may also be affected by chatbot outputs and give rise to claims by the affected parties.
In practice, therefore, when using chatbots and AI assistants, it is advisable to implement close monitoring of the admissibility and accuracy of the output, both technically and organizationally. This is most likely to be achieved through a combination of several measures (e.g., topic filters, guardrails, escalation to human review, ongoing monitoring, and random checks).
Due to the particular significance of the issues regarding the attribution of false statements made by chatbots, the Senate has granted leave to appeal to the Federal Court of Justice.
(Dr. Marian Klingebiel, UNVERZAGT Law)