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Since rating portals are becoming increasingly important due to the growing number of online providers, we would like to offer a well-founded overview of case law here. Due to the ever-increasing variety of offers, it is becoming increasingly difficult for customers to judge the extent to which the desired provider meets their own requirements in terms of reliability and customer service.
While word of mouth, which is decisive offline, is becoming less and less important, customers are now increasingly using dealer-owned or independent third-party review portals when selecting a shop/service provider. In these, customers have the opportunity to publicly rate their previous experiences with the company in the form of a rating system (e.g. stars, school grades) or in the form of a testimonial.
Potential customers can then usually view this rating publicly on the rating portal page to get an idea of the future contract partner in advance.
The case law of recent years shows that the submission of a valuation in particular involves a wide variety of legal problems. Thus, it will be in the interest of the rated company to avoid negative ratings if possible. On the other hand, it is in the interest of customers to be informed as truthfully as possible about the practices of the respective company/service provider. If these two interests collide, it is necessary to weigh up the interests of the evaluated company/service provider and the information interest of the customers accordingly in this area of conflict.
In the following, the fundamental issues in the use of rating portals will be addressed on the basis of current case law.
I. Prevent valuations and their prerequisites
Affected by an assessment can be natural persons such as doctors or craftsmen as well as companies such as hotels or travel providers.
1. ratings of people:
a.) Basic admissibility of assessments
The fundamental admissibility of an evaluation of individuals is based in particular on the core question of the extent to which the collection, use, etc. of the data is permissible at all in accordance with the German Data Protection Act. §§ 28, 29 BDSG is permissible and whether the evaluation falls within the scope of protection of the fundamental right to freedom of opinion pursuant to Art. 5 para. 1 and possibly the right to informational self-determination from Art. 2 Par. 1 in connection with. Art. 1 para. 1 GG displaced.
The Federal Court of Justice (BGH) dealt with these questions in the landmark so-called “Spickmich” decision (BGH, judgment of June 23, 2009 — Case No.: VI ZR 196/08), which has subsequently been regularly followed by the courts of instance (see most recently OLG Köln, judgment of January 5, 2017 — I‑15 U 121/16).
The subject of the complaint here was a portal on which teachers could be rated.
The court had to distinguish between the protection of the plaintiff’s (teacher’s) right to informational self-determination under Art. 2 para. 1 GG in conjunction with. Art. 1 para. 1 GG and the right to freedom of opinion and communication under Art. 5 Para. 1 GG to be weighed.
Although the court undoubtedly considers the right to informational self-determination to be affected by the mentioning of the teacher’s name and the associated grading, it concluded after weighing up the matter that this right is secondary to the right to freedom of expression and communication under Article 5 (1) of the German Constitution. 1 of the Basic Law.
In this case, the court rated the information interest for the users of the portal higher than the right to informational self-determination.
It should be noted, however, that such a consideration must always be made on a case-by-case basis. According to the case law of the Federal Court of Justice (Bundesgerichtshof, BGH), rating portals are thus considered to be fundamentally protected by freedom of expression under Art. 5 Para. 1 protected, but this does not mean that the user is given carte blanche with regard to his rating.
Thus, what information is disclosed as part of the assessment can be critical. For example, it can make a difference whether the information is from the social or work environment or private information. Whereas the former are carried to the outside by the data subject himself (cf. Section 29 (1) no. 2 BDSG) and, as a matter of principle, are carried to the outside by the data subject. are open to everyone, private or intimate information regularly does not reach the public and therefore enjoys increased protection.
The Federal Court of Justice also allows the right to informational self-determination to take a back seat in the context of its weighing of interests because the information that became known in the context of the teacher evaluation was only attributable to the social sphere of the teacher. The right to informational self-determination is therefore only marginally affected (also Düsseldorf Regional Court, judgment of April 9, 2013 — 5 O 141/12, Kiel Regional Court, judgment of December 6, 2013 — 5 O 372/13).
It follows that, above all, ratings based on private or intimate information are likely to be inadmissible as a rule.
It should be noted that the above-mentioned “Spickmich” decision concerned an evaluation forum that could only be viewed after prior registration. In the meantime, however, case law has also dealt with publicly viewable rating portals (see OLG Hamm, decision dated August 3, 2011 — Ref.: 3 U 196/10) and applied the above principles accordingly. Such valuations are also generally made. considered permissible. However, the OLG Hamm points out that the weighing must also be carried out on the basis of the group of persons affected. If the person concerned (in this case: doctor) addresses his offer to everyone, there is also an overriding interest in information for everyone.
b) Limits within the framework of the balancing in the case of evaluation portals
However, following the established case law of the Federal Constitutional Court (cf. Order of February 24, 1999 — 1 BvR 1847/95, with further references), the Federal Court of Justice also indicates in the “Spickmich” decision that an evaluation in an individual case may not be covered by Article 5 (1) of the German Constitution. 1 of the German Constitution (GG), provided that it is so-called defamatory criticism.
According to the BVerfG, defamatory criticism is always present when the statement no longer focuses on the substance of the matter, but rather on defamation of the person, even beyond polemical and exaggerated criticism (cf. BVerfGE 82, 272 <284>).
An evaluation is thus regularly inadmissible and no longer covered by Art. 5 Par. 1 of the German Basic Law (GG), insofar as they are mere formal insults or attacks on human dignity, for example (cf. BGH, judgment of June 23, 2009 — Case No.: VI ZR 196/08).
A further boundary is to be drawn where the statement is no longer a statement of opinion but a statement of fact.
Expressions of opinion are such statements that are characterized by the element of opinion, opinion or opinion (BVerfGE 85, 1 <14 f.>), while facts are in principle amenable to verification by means of evidence (BVerfGE 94, 1 <8>). In individual cases, however, facts may also fall under the protection of freedom of opinion, provided that they are decisive for the formation of the opinion (BVerfGE 85, 1 <14 f.>).
As a rule, not covered by the protection of freedom of expression and communication under Art. 5 para. 1 GG, such factual allegations fall that are deliberately untrue or demonstrably false (BVerfG, decision of October 25, 2005 — 1 BvR 1696/98). This means that such entries on rating portals are generally inadmissible.
Similarly, an evaluation may be inadmissible if it is not based on a sufficient factual basis and, for example, the investigation on which a restaurant test is based was not carried out neutrally, competently and in an effort to ensure accuracy (see OLG Köln, judgment of May 3, 2011 — I‑15 U 194/10).
2. valuation of companies:
Apart from the evaluation of natural persons, such as teachers, there are also an increasing number of portals on the Internet where customers can evaluate companies such as hotels or travel providers.
Such assessments may violate the so-called “corporate personality right” pursuant to Art. 2 para. 1 GG and/or also constitute an encroachment on the established and practiced business pursuant to §§ 823 I BGB.
Here, too, the core issue is the extent to which the corporate personality right from Art. 2 para. 1 GG with the fundamental right of freedom of communication and opinion from Art. 5 Para. 1 GG must be weighed against each other.
This issue has also recently occupied the courts (OLG Hamburg, judgment of January 18, 2012 — Case No. 5 U 51/11, OLG Stuttgart, judgment of September 11, 2013 — 4 U 88/13).
Following the above-mentioned “Spickmich” decision, case law has also ruled that company ratings are generally covered by freedom of expression and are therefore permissible.
However, the above-mentioned limits and exceptions also apply here (e.g. no defamatory criticism, no untrue statements of fact).
In the entrepreneurial area, the special feature arises that the evaluation of a company by another competing company is an unfair act from the point of view of competition law according to § 4 para. 1 No. 1 and No. 2 UWG. However, the principles mentioned so far can be transferred accordingly in this respect, since within the scope of § 4 para. 1 No. 1 UWG corresponding to defamatory criticism and within the scope of Section 4 para. 1 No. 2 UWG, untrue statements of fact are generally inadmissible. Also, an obstruction of the market participant according to 4 No. 4 UWG is only present if the customers are unreasonably influenced. However, this characteristic is probably often not present in the case of rating portals (cf. OLG Cologne, judgment of January 5, 2017 — I‑15 U 121/16).
3. conclusion on evaluation portals:
Finally, it can be summarized that evaluations, as long as they adhere to the above-mentioned limits, are generally protected by Art. 5 para. 1 sentence 1 of the German Basic Law and are therefore permissible in principle.
II. How to take action against illegal ratings?
Basically, there are two options. The person concerned can initially take action against the author himself or against the rating portal.
1. action against the author of the evaluation
Insofar as the respective author of the evaluation is known, the latter may himself initially be held liable on the basis of §§ 823, 1004 para. 1 S. 2 analog BGB u.U. i.V.m. Art. 2 para. 1 GG by way of a warning by means of a cease-and-desist declaration with a penalty clause to cease and desist from the corresponding evaluation. This injunctive relief can then subsequently be enforced in court by way of interim relief and/or by way of proceedings on the merits in court. In addition, there are also claims for damages and criminal offenses such as, in particular, insulting behavior pursuant to §§ 3 and 4 of the German Civil Code. § 185 StGB, defamation gem. § 186 StGB and defamation acc. § Section 187 of the German Criminal Code (StGB).
However, the question arises as to how to proceed if the author has submitted the rating anonymously.
First of all, it should be noted that the anonymous use of so-called telemedia (e.g. Internet pages) pursuant to § 13 para. 6 p. 1 TMG must be possible anonymously by law. There is therefore an obligation to provide personal data in the evaluation. not, as the anonymous use of the Internet is in line with the legal interests (see OLG Hamm, decision of August 3, 2011 — Ref.: 3 U 196/10). The assessment of anonymous ratings is based on the principles developed in the “Spickmich” decision, among others (cf. OLG Hamm, loc. cit.). Another question, however, is whether from § 13 para. 6 sentence 1 of the German Telemedia Act (TMG) also prohibits the portal operator from providing information.
a. Right to information from the forum operator
If the rating was anonymous or at least under a pseudonym, the question arises for those affected to what extent they can demand information from the rating portal operator about the author of the rating, provided that the latter has any further information at all.
While some courts, referring to the legally guaranteed anonymity from § 13 para. 6 p. 1 of the German Telemedia Act (TMG) (OLG Hamm, decision of August 3, 2011 — Ref.: 3 U 196/10, LG München I, decision of July 3, 2013 — Ref.: 25 O 23782/12), individual courts derive such a right to information from good faith pursuant to Section 242 of the German Civil Code (BGB), provided that the infringement is established and the portal operator can obtain the information without difficulty (OLG Dresden — decision of February 8, 2012, Ref.: 4 U 1850/11).
However, this controversial issue is likely to have lost its relevance at the latest as a result of the BGH’s decision on this issue (BGH ruling of July 1, 2014 — VI ZR 345/13). In this decision, the BGH had to rule on a physician’s claim for information against the operators of a physician rating portal. In this case, the Federal Court of Justice denied a claim to information on the grounds that the portal operator was not liable for the loss of the portal pursuant to Section 12 (1) of the German Civil Code (BGB). 2 TMG is not authorized to disclose the registration data collected for the provision of the telemedium, and there is no basis for authorization in this respect. This opinion now also appears to be followed by the courts of instance (cf. most recently OLG Cologne, judgment of January 5, 2017 — I‑15 U 121/16).
2. action against rating portals themselves
Alternatively, the affected party can also demand the deletion of the rating from the portal itself under certain conditions.
a. Basically no liability of the portals if assessment of Art. 5 para. 1 GG is covered
Provided that the rating is within the above-mentioned limits, the person concerned cannot demand deletion from the respective rating portal. Also with regard to personal data, the Federal Data Protection Act generally does not give rise to a claim for deletion if (as in the case of doctors, for example) the name and address are publicly accessible anyway (cf. Section 29 (1) sentence 1 no. 2 BDSG; OLG Frankfurt, judgment of March 8, 2012 — 16 U 125/11, AG München judgment of October 12, 2012 — 158 C 13912/12). Here, too, freedom of opinion and communication prevail on the part of the portal operator (see Düsseldorf Regional Court, judgment of April 9, 2013 — 5 O 141/12, Kiel Regional Court, judgment of December 6, 2013 — 5 O 372/13, Cologne Higher Regional Court, judgment of January 5, 2017 — I‑15 U 121/16).
It should be noted that in addition to Section 29 of the BDSG, the OLG Cologne also indicated that the stricter Section 28 of the BDSG is relevant. This is said to be the case whenever the portal also concludes a contract with the rated parties themselves (here: physicians). Since in this case the portal also pursues its own business purposes, Section 28 BDSG is to be applied in addition to Section 29 BDSG. However, the Cologne Higher Regional Court (OLG) also comes to the same conclusion in the context of Section 28 (1) of the German Civil Code (HGB). 1 S. 1 No. 3 BDSG, the evaluation is permissible (OLG Köln, loc. cit.).
b.) Liability of the portals in the event of ratings that constitute violations of the law
However, if the rating exceeds the legal limits (e.g. insult, untrue statement of fact, other violations of the law), the portal operator may also be required to delete it under certain conditions.
Even if the portal operators do not write the entry themselves, i.e. they are not the direct perpetrators, they are liable according to the principles of “Stoererhaftung” (Breach of Duty of Care). A “Stoerer” is anyone who in any way willingly and adequately-causally contributes to the infringement of the protected legal interest (BGH, Default Judgment of October 25, 2011 — VI ZR 93/10 m.w.n., LG Hamburg, judgment of March 24, 2017 — 324 O 148/16).
In order to avoid excessive liability, case law has developed certain criteria for assessing the capacity to interfere in order to take account of the special circumstances of the Internet.
Thus, the BGH (cf. BGH loc. cit.) applies the principles already developed in the context of other Internet services (BGH, judgment of March 11, 2004 — I ZR 304/01 , BGH, default judgment of October 25, 2011 — VI ZR 93/10) now also to rating platforms (cf. BGH, judgment of March 01, 2016 — VI ZR 34/15). Accordingly, a platform operator is only a “Stoerer” (interferer) as soon as it becomes aware of the infringements. The portal operator shall then determine and evaluate the facts of the case on the basis of the allegation of the person concerned and taking into account a statement of the person responsible for the evaluation and shall follow up on a specific complaint of the person concerned. The scope of the duty to review is based on a weighing of interests in the individual case.
However, case law indicates that the portal operator may not be satisfied with blanket assurances from the responsible rater. Against the background of the substantiated denial, he must rather demand suitable proof of the factual basis, e.g. by submitting suitable evidence (see BGH, default judgment of October 25, 2011 — VI ZR 93/10, LG Nürnberg-Fürth, order of May 08, 2012 — 11 O 2608/12).
Although the Federal Court of Justice does not expressly comment on the obligation to delete content on rating portals in the above-mentioned decision, it can be assumed from previous case law on Internet services that deletion must take place in the event of an infringement (Federal Court of Justice, judgment of March 11, 2004 — I ZR 304/01, on the obligation to delete content on blogs: BGH, default judgment of October 25, 2011 — VI ZR 93/10). Thus, the courts of instance also regularly assume an obligation to delete in the event of an infringement (thus also OLG Cologne, judgment of January 5, 2017 — I‑15 U 121/16 -, LG Hamburg, judgment of March 24, 2017 — 324 O 148/16, on the obligation to delete in the case of blogs: OLG Cologne, judgment of January 05, 2017 — I‑15 U 121/16). However, it is unclear whether, in accordance with the case law on trademark law, the portal operator must then reasonably prevent further infringements by a responsible party who has already attracted attention (see BGH, judgment of March 11, 2004 — I ZR 304/01). The case law on unlawful forum entries probably tends towards a limited duty of review, provided that the entries can be reviewed with a reasonable amount of effort (see Hanseatic Higher Regional Court of Hamburg, judgment of August 22, 2006 — 7 U 50/06). Thus, the audit requirement is likely to be a matter of case-by-case assessment.
However, the portal operator is not obliged to check the legality of every rating in advance.
The extent to which the liability privilege under Section 10 of the German Telemedia Act (TMG) applies to rating portal operators has not yet been clarified.
While the Federal Court of Justice (BGH) refers to Section 10 of the German Telemedia Act (TMG) only in relation to liability for damages and criminal liability (see BGH, judgment by default of October 25, 2011 — VI ZR 93/10, also BGH, judgment of July 12, 2012 — I ZR 18/11), the courts of instance (KG Berlin, judgment of April 16, 2013 — 5 U. April 2013 — 5 U 63/12) apply Section 10 of the German Telemedia Act (TMG) in part to claims for injunctive relief, following the case law of the European Court of Justice (ECJ, judgment of March 23, 2010 — C‑236/08 to C‑238/08, ECJ, judgment of July 12, 2011 — C‑324/09).
c.) Liability of the portals when “making” the assessment
According to case law (BGH, judgment of November 12, 2009 — I ZR 166/07, KG Berlin, judgment of April 16, 2013 — 5 U 63/12, BGH, judgment of April 4, 2017 — VI ZR 123/16), however, rating portals can also be interferers and thus liable themselves if they make a user’s entry their own. In this context, it must be examined on the basis of an overall view whether the portal operator has assumed responsibility for the content published on its website in a manner that is recognizable to the outside world.
According to this, it speaks for such an attribution if the portal operator editorially checks the content of the posted contributions for completeness and correctness and then, in particular without consulting the third party, independently changes or partially removes them, for example. This assumption of responsibility for the content at least has an external effect if the portal operator informs the person affected by the criticism of the changes, partial removals, etc. The portal operator is not responsible for the content of the portal. The consequence is that the portal operator is then to be regarded as a direct interferer.
III. action by portals against unlawful ratings
If the portal operator wants to keep open the possibility to exclude relevant users from its portal, it can define the terms of use in principle. by agreeing on specific terms of use in the form of GTCs. The legal limits within which such agreements are permissible depend on the individual case (see LG München I, judgment of October 25, 2006 — Case No. 30 O 11973/05).
However, it is questionable whether the portal operator can exclude certain users even without special terms and conditions. Case law grants the portal operator a so-called “virtual domiciliary right” (cf. for chat pages: OLG Köln decision 25.8.2000 19 U 2/00).
If the portal operator is the owner of the hardware, server, etc., this follows from §§ 903 S. 1 Alt. 2, 1004 BGB, if he has rented it the protection from the possession protection claims of §§ 858, 862 BGB follows (so also LG Munich I, loc. cit.).
In addition, a contract regarding the use of the portal is regularly concluded between the user and the portal operator, so that the portal operator may terminate this contract in accordance with the requirements of Section 314 of the German Civil Code (BGB) if there is good cause to do so. can terminate the contract without notice after prior warning (also LG München I, loc.cit.).
However, whether such an important reason exists is again a question of the individual case.
The question of the extent to which portal operators can terminate the contractual relationship at any time without cause, other than for good cause, has not been clarified by the highest court.
While the AG Karlsruhe affirms the possibility of termination without cause in the case of free services with reference to the freedom of contract (cf. AG Karlsruhe, judgment of July 24, 2012 — file reference 8 C 220/12), the LG Bonn rejects termination without cause in any case if the operator has fundamentally prohibited the use of the service. opened to everyone. An arbitrary termination and an arbitrary exclusion would then be contrary to good faith due to the violation of § 242 BGB and therefore inadmissible (cf. LG Bonn, judgment of November 16, 1999 — 10 O 457/99).
Similarly, a portal operator can defend itself against unlawful conduct by a competitor by way of IP blocking (see Higher Regional Court of Hamm, judgment of June 10, 2008 — 4 U 37/08) or assert a claim for injunctive relief under competition law (e.g., in the case of targeted obstruction) pursuant to Section 4 No. 4 in conjunction with Section 8 UWG. § Section 8 UWG (cf. Hanseatic Higher Regional Court of Hamburg, judgment of May 28, 2009 — 3 U 191/08).
IV. How are falsified customer ratings to be evaluated?
Customer reviews can be skewed in a number of ways. On the one hand, negative ratings can be suppressed, high rankings can be bought or the rating result can be influenced by placing so-called “fake ratings”.
The OLG Düsseldorf has already classified the suppression of negative ratings as misleading and thus inadmissible (see OLG Düsseldorf, judgment of February 19, 2013 — Case No. 20 U 55/12). Likewise, the Berlin Regional Court considers a misleading commercial act to exist if hotels are granted the opportunity to positively influence a ranking by increasing commissions (see Berlin Regional Court, decision of August 25, 2011 — 16 O 418/11). In this respect, the consumer does not expect that payments by the hotel would influence the ranking (cf. LG Berlin loc.cit.).
The above-mentioned principles are likely to be applied to fake ratings, so that these are likely to be inadmissible in this respect.
If you have any further interest in the legal issues surrounding rating portals or require legal assistance on the subject, please do not hesitate to contact us at info@rehkatsch.de or by telephone on 0221–4201074.
