The First Civil Senate of the Federal Court of Justice (BGH), which is responsible, inter alia, for competition law, has ruled that the operator of a hotel rating portal is not liable for the omission of untrue factual claims made by a user on its portal due to a violation of Section 4 No. 8 UWG or Section 3 para. 1 UWG.
The plaintiff is the owner of a hotel. She demanded that the defendant, who operates an online travel agency on the internet as well as a hotel rating portal linked to it, cease and desist from making an untrue factual allegation which the plaintiff classified as damaging to its business. A review of the plaintiff's hotel appeared on the defendant's hotel rating portal under the headline "For €37.50 per night and head in a double room there were bed bugs".
Users can rate hotels on the defendant's portal on a scale between one (very bad) and six (very good). From this, the defendant calculates certain average values and a recommendation rate. Before the defendant includes user ratings in its portal, they pass through a word filter software which is supposed to find, among other things, insults, abusive criticism and self-evaluations of hotel owners. Unobtrusive reviews are automatically published. Filtered out reviews are checked by employees of the defendant and then manually released if necessary.
The plaintiff issued a warning to the defendant, who then removed the offending review from its portal, but did not submit the declaration of submission required by the plaintiff.
The action remained unsuccessful in the lower courts. The Federal Supreme Court dismissed the appeal against the appeal ruling.
The contested user rating is not an "assertion" of the defendant's own, because the defendant did not adopt it as its own, neither by examining the ratings nor by statistically evaluating them. The defendant also did not "disseminate" the claim. The liability of a service provider within the meaning of section 2 no. 1 of the German Telemedia Act (TMG) who - like the defendant - assumes a neutral role is limited pursuant to section 7 sub-section 2, section 10 sentence 1 no. 1 TMG. He is only liable for the untrue factual assertions of the third party if he has violated specific duties of verification, the intensity of which depends on the circumstances of the individual case. These include the reasonableness of the duty to verify and the recognisability of the infringement. 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. Accordingly, the defendant did not breach any specific duty to examine. It cannot reasonably be expected to carry out a preliminary examination of the content of the user ratings. In such a case, liability to cease and desist only exists if the operator of an internet portal becomes aware of a clear infringement and nevertheless fails to remedy it. The defendant complied with this obligation and therefore did not violate any competitive marketing obligations within the meaning of § 3 para. 1 UWG. In the case in dispute, there are also no indications that the defendant operates a highly dangerous business model that triggers special duties of examination.
Judgment of the Federal Court of Justice of 19 March 2015 - I ZR 94/13 - Hotel rating portal
Lower courts:
Berlin Regional Court - Judgment of 16 February 2012 - 52 O 159/11
Kammergericht - Judgment of 16 April 2013 - 5 U 63/12
Source: Press release of the BGH
Goldberg Attorneys at Law 2015
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: Info@goldberg.de
