The plaintiff sued the defendant for injunctive relief against statements made on a rating portal. The defendant operates a portal on the internet where patients can post their evaluations of clinics. The plaintiff operates a clinic for ENT and laser surgery. A patient who was not involved in the legal dispute, who had undergone surgery on his nasal septum at the plaintiff's clinic and who developed sepsis 36 hours after the operation and after being transferred to another hospital, posted a testimonial about the plaintiff's clinic on the defendant's portal. In it, he claimed that a septic complication had occurred "during" a standard operation. The clinic staff had been overwhelmed by the life-threatening emergency situation, which had almost led to his death. After the plaintiff had asked the defendant to remove the post from the portal, the defendant made changes to the text by inserting an addition and deleting a part of the sentence without consulting the patient. He informed the plaintiff of these "interventions" and of his opinion that "further interventions" did not appear to be appropriate.
Course of the process:
The Regional Court granted the action for an injunction. The defendant's appeal to the Higher Regional Court was unsuccessful.
Decision of the Federal Supreme Court:
The VIth Civil Senate, which is responsible, among other things, for the protection of the general right of personality, dismissed the appeal. Civil Senate dismissed the appeal allowed by the Higher Regional Court. The defendant had made the challenged statements his own, so that he was liable as a direct interferer. He reviewed the content of the patient's statements in response to the plaintiff's complaint and influenced them by deciding independently - in particular without consulting the patient - which statements he amended or removed and which he retained. He made this handling of the evaluation known to the plaintiff as the person affected by the criticism. In the required objective view based on an overall consideration of all the circumstances, the defendant thus assumed responsibility for the content of the challenged statements. Since the statements were untrue factual allegations and expressions of opinion on an untrue factual basis and with an untrue factual core, the defendant's right to freedom of expression had to take second place to the plaintiff's general right of personality.
Judgment of the BGH of 4 April 2017 - VI ZR 123/16
Frankfurt am Main Regional Court - Judgment of 24 September 2015 - 2-03 O 64/15
OLG Frankfurt am Main - Judgment of 3 March 2016 - 16 U 214/15
Source: Press release of the Federal Supreme Court of 04.04.2017
Goldberg Attorneys at Law 2017