The Hanseatic Higher Regional Court (decision of February 8, 2024 - 7 W 11/24) ruled in connection with a review on the Kununu platform that employers have a right to know the real name of a reviewer or to have the review deleted.
Negative evaluation
In this case, a person left a negative review on Kununu. On this platform, employers can be rated anonymously with regard to various categories (e.g. working atmosphere, communication, work-life balance).
However, the employer doubted the authenticity of the review and demanded that Kununu delete the review. After the employer did not provide any evidence that there was actually an infringement after Kununu's request, the review remained online. Instead, Kununu contacted the author of the review, who in turn provided Kununu with anonymized proof of activity.
Request for deletion
The employer applied for an interim injunction requiring Kununu to delete the review. However, the Hamburg Regional Court rejected the application. It was of the opinion that the anonymized evidence provided by the applicant was sufficient to prove the authenticity of the review.
The employer lodged an appeal against this with the Higher Regional Court of Hamburg. The Higher Regional Court of Hamburg agreed with the employer's view. It ruled that the anonymity of the person posting the review can be revoked and that the review must be permanently deleted if there is any doubt as to its authenticity.
In this context, the Higher Regional Court of Hamburg explicitly referred to the principles developed by the Federal Court of Justice for the liability of the operator of an internet rating portal (BGH, judgment of 9. 8. 2022, file no. VI ZR 1244/20, NJW 2022, p. 3072 et seq.).
Valuation must be comprehensible
It must be possible for the employer to ascertain whether the person giving the rating has actually ever been in any kind of business contact with them. The employer must not be at the mercy of a bad review without protection. According to the Higher Regional Court of Hamburg, obtaining proof of activity from Kununu itself, which the first-instance Regional Court of Hamburg considered sufficient, is not sufficient to rule out that the review does not constitute a breach of law.
As employee criticism always relates to specific cases, a review of the actual circumstances can only take place if the person making the criticism is known to the employer.
There are also two other reasons why the decision has not changed.
Firstly, in the opinion of the Higher Regional Court of Hamburg, it is not an abuse of law on the part of the employer to be represented by a law firm that is primarily active in the removal of entries in review portals. The fact that she objected to several reviews and claimed that they were fake also did not constitute an abuse of rights because it was plausible that several unlawful reviews had been submitted.
From a data protection perspective, there is also no right to anonymity, as it is also important to know who the author of the review is in order to check the legality of a negative review.
The decision of the Higher Regional Court of Hamburg is therefore a great relief for companies that defend themselves against "fake reviews". The legal representative of the employer even said that the decision was "revolutionary". As is so often the case, only future day-to-day practice will show whether this is really the case.
