The plaintiff is a dentist. The defendant operates a review portal for doctor search and evaluation at www.jameda.de. Interested parties can access information about doctors there. The portal also offers registered users the opportunity to rate doctors' services. Ratings, which users can submit without disclosing their real name, are based on a school-grade-oriented scale across five pre-formulated categories: 'Treatment', 'Information', 'Trust Relationship', 'Time Taken', and 'Friendliness'. Additionally, comments can be provided in a free-text field.
The Federal Court of Justice's decision concerns an anonymous user's rating of the plaintiff, stating that they could not recommend the plaintiff. The overall grade was 4.8, comprising individual grades given in the aforementioned categories, including a '6' each for 'Treatment', 'Information', and 'Trust Relationship'. The plaintiff denies having treated the reviewer.
The plaintiff requested the defendant to remove the rating prior to litigation. The defendant forwarded the complaint to the user. However, citing data protection concerns, the defendant did not forward the user's response to the plaintiff, and the rating remained on the portal.
Through his lawsuit, the plaintiff demands that the defendant cease disseminating or allowing the dissemination of the disputed rating. The Regional Court upheld the claim, but the Higher Regional Court dismissed it following the defendant's appeal. The VI Civil Senate of the Federal Court of Justice, responsible for general personality rights, overturned this decision and referred the case back to the appellate court.
The contested rating is not an 'assertion' by the defendant, as the defendant has not adopted its content. Consequently, the defendant is only liable for a rating submitted by a user of its portal if it has violated reasonable due diligence obligations. The scope of these obligations depends on the circumstances of the individual case. Crucial importance is attached to the severity of the alleged legal infringement, the provider's investigative capabilities, and the function of the service operated by the provider. However, a service provider must not be subjected to a due diligence obligation that economically jeopardizes its business model or disproportionately complicates its operations.
Based on the appellate court's findings, the defendant violated its due diligence obligations. Operating a review portal inherently carries an increased risk of personality rights infringements compared to other portals. This risk is exacerbated by the ability to submit ratings anonymously or pseudonymously. Furthermore, such covertly submitted ratings make it more difficult for the affected doctor to take direct action against the reviewer. Against this background, the defendant portal operator should have forwarded the affected doctor's complaint to the reviewer and urged them to describe the alleged treatment contact as precisely as possible. Moreover, the defendant should have requested the reviewer to provide comprehensive documentation supporting the treatment contact, such as bonus booklets, prescriptions, or other evidence. Any information and documents that could have been transmitted without violating Section 12 (1) TMG should have been forwarded to the plaintiff. In further proceedings, the parties will have the opportunity to present additional arguments regarding any further verification measures taken by the defendant.
Federal Court of Justice ruling of March 1, 2016 – VI ZR 34/15
Lower Courts:
Regional Court Cologne – 28 O 516/13 – Decision of July 9, 2014;
Higher Regional Court Cologne – 15 U 141/14 Decision of December 16, 2014
Source: Press Release of the Federal Court of Justice
Note:
The implications of this Federal Court of Justice (BGH) decision are not yet foreseeable. According to the BGH, '..the operation of a review portal ... inherently carries an increased risk of personality rights infringements compared to other portals.This risk is exacerbated by the ability to submit ratings anonymously or pseudonymously'. For this reason, the BGH has imposed higher and more extensive due diligence obligations on review portals than on other portals. Whether review portals can fulfill these due diligence obligations, and/or whether this decision will lead to a cessation of negative ratings on review portals because negative 'reviewers' might fear having to immediately provide evidence for their alleged negative experiences to portal operators, remains to be seen and will be clarified by time and further court decisions. The reaction of the relevant review portals also remains to be seen.
Goldberg Attorneys at Law 2016
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
