The First Civil Senate of the Federal Court of Justice (BGH), responsible inter alia for competition law, has ruled that the operator of a hotel review portal is not liable for injunctions against false 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 demands that the defendant, who operates an online travel agency and an associated hotel review portal on the internet, cease a false factual claim that the plaintiff considers damaging to business. Under the heading “For €37.50 per night per person in a double room, there were bed bugs,” a review of the plaintiff's hotel appeared on the defendant's hotel review portal.
Users can rate hotels on the defendant's portal on a scale between one (very poor) and six (excellent). From this, the defendant calculates certain average values and a recommendation rate. Before the defendant incorporates user reviews into its portal, they pass through word filter software designed to detect, among other things, insults, abusive criticism, and self-reviews by hotel owners. Unobjectionable reviews are published automatically. Filtered reviews are checked by the defendant's employees and then, if necessary, manually approved.
The plaintiff issued a warning to the defendant, who subsequently removed the disputed review from its portal but did not submit the cease-and-desist declaration with a penalty clause demanded by the plaintiff.
The action remained unsuccessful in the lower courts. The Federal Court of Justice dismissed the appeal against the appellate judgment.
The disputed user review is not the defendant's own “assertion” because the defendant did not adopt its content, neither through reviewing the ratings nor through their statistical evaluation. The defendant also did not “disseminate” the assertion. The liability of a service provider within the meaning of Section 2 No. 1 TMG, who – like the defendant – assumes a neutral role, is limited according to Section 7 Para. 2, Section 10 Sentence 1 No. 1 TMG. They are only liable for the false factual claims of a third party if they have violated specific review obligations, the intensity of which depends on the circumstances of the individual case. These include the reasonableness of the review obligations and the recognizability of the legal infringement. In this context, a service provider must not be subjected to a review obligation that economically endangers their business model or disproportionately complicates their activities. Accordingly, the defendant has not violated any specific review obligation. A substantive pre-screening of user reviews is not reasonable for them. Liability for injunction in such a case only arises if the operator of an internet portal gains knowledge of a clear legal infringement and nevertheless fails to remove it. The defendant has fulfilled this duty and therefore has not violated any competitive duties of care within the meaning of Section 3 Para. 1 UWG. In the present case, there are also no indications that the defendant operates a highly dangerous business model that would trigger special review obligations.
BGH Judgment of March 19, 2015 – I ZR 94/13 – Hotel Review Portal
Lower Courts:
Regional Court Berlin – Judgment of February 16, 2012 – 52 O 159/11
Higher Regional Court Berlin – Judgment of April 16, 2013 – 5 U 63/12
Source: Press Release of the Federal Court of Justice
Goldberg Attorneys 2015
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: Info@goldberg.de
