The plaintiff is a dentist. The defendant operates a rating portal for searching and rating doctors under the internet address www.jameda.de. There, interested parties can call up information about doctors. The portal also offers registered users the possibility to rate the activity of doctors. The evaluation, which the respective user can give without stating his or her real name, is based on a scale oriented on school grades for a total of five pre-formulated categories, namely "treatment", "clarification", "relationship of trust", "time taken" and "friendliness". Furthermore, there is the possibility of comments in a free text field.
The subject of the decision of the Federal Court of Justice is the assessment of the plaintiff by an anonymous user that he could not recommend the plaintiff. The overall mark given was 4.8. It was made up of the individual marks awarded in the categories mentioned, including the mark "6" each for "treatment", "clarification" and "relationship of trust". The plaintiff denied that he had treated the evaluator.
The plaintiff demanded pre-trial that the defendant remove the rating. The defendant sent the complaint to the user. The defendant did not forward the user's reply to the plaintiff, citing data protection concerns. The evaluation was left on the portal.
In his action, the plaintiff demanded that the defendant refrain from disseminating or causing to be disseminated the evaluation depicted. The Regional Court granted the claim; the Higher Regional Court dismissed it on appeal by the defendant. The VIth Civil Senate of the Federal Court of Justice, which is responsible for the general right of personality. The VI Civil Senate of the Federal Court of Justice, which is responsible for the general right of personality, overturned this decision and referred the case back to the Court of Appeal.
The objectionable evaluation is not an "assertion" of the defendant's own because the defendant did not adopt it as its own content. The defendant is therefore only liable for the evaluation submitted by the user of its portal if it has violated reasonable duties of verification. The extent of this duty depends on the circumstances of the individual case. The weight of the infringement complained of, the provider's possibilities of knowledge and the function of the service operated by the provider are of decisive importance. In this context, a service provider may not be subject to a duty of inspection that would jeopardise its business model economically or make its activities disproportionately difficult.
On the basis of the findings of the Court of Appeal, the defendant violated its duty to verify. Compared to other portals, the operation of a rating portal carries an increased risk of violations of personal rights from the outset. This risk is increased by the possibility to submit reviews anonymously or pseudonymously. In addition, such concealed reviews make it more difficult for the doctor concerned to take direct action against the reviewer. Against this background, the defendant portal operator should have sent the complaint of the doctor concerned to the reviewer and urged him to describe the alleged treatment contact as precisely as possible. Furthermore, the portal operator should have requested the reviewer to submit documents proving the treatment contact, such as bonus books, prescriptions or other evidence, as comprehensively as possible. It should have forwarded to the plaintiff the information and documents that it would have been able to forward without violating Section 12 (1) of the German Telemedia Act (TMG). In the further proceedings, the parties will have the opportunity to make additional submissions on any further examination measures taken by the defendant.
Ruling of the BGH of 01.03.2016 - VI ZR 34/15
Lower courts:
LG Köln - 28 O 516/13 - Decision of 09 July 2014;
OLG Cologne - 15 U 141/14 Decision of 16 December 2014
Source: Press release of the BGH
Remark:
The effects of this decision of the Federal Supreme Court (BGH) are not yet foreseeable. According to the BGH, "...the operation of a rating portal ... carriesan increased risk of violations of personality rights from the outset compared to other portals. This risk is increased by the possibility to submit reviews anonymously or pseudonymously". For this reason, the BGH imposed higher and more extensive review obligations on review portals than on other portals. Time and further court decisions will tell whether the rating portals will be able to fulfil the testing obligations and/or whether this decision will lead to no more negative ratings being submitted to rating portals, since negative "raters" will have to fear that they will have to immediately submit evidence of the alleged negative experiences to the portal operators in the case of negative ratings. The reaction of the relevant rating portals also remains to be seen.
Goldberg Attorneys at Law 2016
Attorney at Law Michael Ullrich, LL.M. (Infomration Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
