Online review platforms such as Yelp, Trustpilot and getting increasingly popular. They are available for practically every situation in life, every service and every product. In our purchase decisions, we increasingly rely on such recommendation. Positive reviews thus become immediately relevant for every online base sales and marketing concept. Negative ratings can instantly lead to competitive disadvantages and endanger the existence of the company. This article summarises legal requirements for online ratings and the legal recourse to challenge negative reviews.
1. Are publications of personal data on online review platforms permissible without consent?
Reviews and related publications of personal data may be protected by freedom of speech and justified in the public interest. In the so-called Jameda ruling on the Jameda medical doctor review platform, the German Federal Supreme Court (BGH) ruled that publication of personal data of medical doctors, such as name and address of a doctor, is generally permissible. Online review platforms such as Jameda can refer to a social interest in the review of medical services.
The Jameda ruling refers to the legal situation before the GDPR came into force, but can also be applied to the new statutory data protection regime under the GDPR. Publication of personal data can thus be justified under Art 6 (1) (f) GDPR if there is a public interest in the possibility of evaluation. This will be the case in for many publicly offered services such as those provided by medical doctors, tax consultants or craftsmen. The more private the context of the online review platform becomes, the more conflicting interests of those affected must be weighted, which may prevent publication.
2. Are negative reviews admissible on online review platforms?
Positive and negative reviews are permitted within the right to freedom of speech (Article 5 GG – German Constitution). For online reviews, there is a distinction between statements of fact and value judgements. Statements of fact are admissible if they are true. Value judgements must be socially appropriate and in any case must not exceed the limit of abusive criticism. It is therefore important to correctly distinguish between facts and value judgements.
Facts are verifiable and proof of truth. An example is the statement: PLANIT // LEGAL is a law firm located in Hamburg. Whether this statement is true or false can be objectively and unambiguously verified. A value judgement is not unambiguously right or wrong, instead it expresses a personal evaluation and personal statement. An example of a value judgement is the statement: PLANIT // LEGAL has a very nice office. Sharing this evaluation depends on personal taste.
False factual claims are not protected under the right to freedom of speech, i.e. lies and value judgments that are socially inappropriate because they cross the boundaries of so-called abusive criticism and only serve the purpose of degrading a person. This also applies to online review platforms. The statement “The doctor removed my appendix even though I was being treated for a stomach ulcer” is therefore only admissible as a factual claim if it is true. The statement “The doctor is a quack doctor” would be inadmissible as a value judgement, since it crosses the boundaries of abusive criticism.
3. What protection is there against inadmissible reviews?
There is a so-called interim injunction and claim to remove the online review for inadmissible reviews. In the first step by a corresponding request to refrain from the review or to take it back (warning), in the next step the injunction claim can then be brought to court in proceedings for interim relief or a “classical” court action. The right to interim injunction primarily exists against the person who has committed an infringement. The so-called “Verhaltensstörer” (polluter). In the case of the inadmissible evaluation thus against the evaluator. The evaluator is often not recognisable by the person being assessed because he has given his review pseudonymously on the online review platform.
4. Can the operator of an online review platform also be addressed?
In principle, the operator of the online review platform only offers the website for reviews, but does not post any reviews himself. The German Federal Supreme Court (BGH) therefore in principle denies any liability on the part of the platform operator for the violation of legal rights committed by users.
This assessment will change, however, if the operator of the online review platform adopts the content of the review. In this case, the review is a violation of legal rights by the operator of the online review platform, so that he is to be considered liable (as a polluter) and can be subject to interim injunction and court action. This is to be assumed in any case if the operator of the online review platform editorially reviews and approves contents. The independent modification of the content of the review by the operator of the online review platform without the consent of the reviewer also constitutes such an adoption.
Even if the operator of the online review platform has not adopted the statement, legal action against the operator of the online review platform may be considered as an indirect polluter. An indirect polluter is liable if he has the actual and legal ability to influence the actions of the independently acting third party. Since the liability of the indirect polluter causing the interference is not to be extended excessively, it is required that the indirect polluter violates his or her own duties of conduct, in particular his or her duty to inspect. The German Federal Supreme Court (BGH) has developed criteria for the requirements for inspection obligations of operators of online review platforms in the context of the so-called Jameda II decision. These provide for a four-phase process.
In the first phase, the affected person must provide the operator of the online review platform with a particular indication of an infringement of legal rights. The reference must be formulated in detailed manner. The operator of the online review platform must then investigate.
In the second phase, the operator of the online review platform forwards the complaint to the reviewer and asks him to state his opinion. The response must be as detailed as possible. Evidence or other indications of the review carried out should be included in the statement for substantiation. If the reviewer does not submit a response within a reasonable period of time, or if the response is not meaningful, the operator of the online review platform is obliged to delete the review.
If the reviewer submits a response that is sufficiently substantiated by evidence or other indications, the operator of the online review platform must forward the response to the person affected in the third phase.
As a consequence, the person affected likewise has the opportunity to respond. If, in turn, the person affected does not respond to this response, the operator of the online review platform does not have to delete the review. If a response is made, it must be forwarded to the reviewer. The latter can then, if desired, respond again, which enables the person affected to make a further response. Under certain circumstances, this procedure can be continued until the last phase of the procedure is ultimately possible.
In the last phase, the operator of the online review platform must decide whether, based on the factual clarification provided by the responses, the review must be deleted or may be retained. If this decision is not in the interests of the person being reviewed, he or she can (judicially) defend himself or herself against the decision.
Online review platforms have major impact on success and failure of online-based sales and marketing concepts. From the first negative review to the universally feared “Shit-Storm” it may only takes a few clicks. Those affected are well advised to keep an eye on their reviews and, in case of doubt, act quickly to prevent any worst case scenario.