Online rating portals (reviews on the internet) are important for many companies. It is all the more unfortunate when posts cross boundaries. The range of violations extends from false statements of fact to vituperative criticism to insults, defamation or slander. Sometimes, false reviews are deliberately placed by competitors in order to harm another company (fake reviews). We show you how to defend yourself properly.
Which assessments have to be accepted?
The OLG Celle had to deal with the following facts:
On an internet portal for the evaluation of employers, there was an evaluation about an employer. This evaluation contained, among other things, the allegation that the employer in question at times paid no salary at all or, when asked, paid at most 10% of the salary.
The employer objected to this evaluation and demanded information from the portal operator about the IP address, name and email address of the user as well as the date and time the evaluation was uploaded. The portal operator refused to provide the information.
The Regional Court of Stade obliged the portal operator to provide information; his appeal to the Higher Regional Court of Celle was unsuccessful.
What is allowed to be written on portals and what is not?
According to the OLG Celle, the allegation in the evaluation fulfilled the elements of the offence of defamation (credit risk) according to § 187 Alt. 3 StGB. This is because the allegation is likely to shake confidence in the employer's ability or willingness to fulfil pecuniary obligations.
The offence under section 187 of the Criminal Code is at the same time an interference with the established and exercised business, an absolutely protected right.
How can I defend myself against unjustified, false evaluations?
In the case of clear violations of the law such as the present one, you have a claim against the portal operator for the deletion of the offending post. If he or she does not delete this post upon your request and does not obtain a statement from the author of the review, you are even entitled to injunctive relief against the portal operator.
However, a claim for cancellation is often not enough. Rather, injured parties also want to assert claims for injunctive relief and/or damages against the perpetrator. For this, you need information about the offender. This is where the right to information against the portal operator under Section 14 (3) TMG can help you.
Is everyone entitled to information from portal operators?
Quite clearly: No!
The portal operator is only obliged to provide information in cases pursuant to Section 14 (3) TMG. This is the case in the event of a violation of absolute rights such as life, health, property or the established and exercised business. Furthermore, in the cases of Section 1 (3) of the Network Enforcement Act. The latter lists criminal offences such as offences against public order, incitement of the people, insult, defamation.
What do I have to do?
First and foremost, they need to act quickly, for several reasons:
- The portal operators store the IP addresses of the users, sometimes only for a few days. Without the IP address, it is more difficult to enforce your rights against the perpetrator.
- You only have about 4 weeks to apply for an interim injunction (whether against the portal operator or against the offender). The quicker you react, the sooner you secure the possibility of successful summary proceedings.
You should definitely seek advice. In individual cases, the distinction between permissible (albeit borderline) expression of opinion or defamatory criticism/criminal offence is fluid. In the case of a pure expression of opinion, you have no claim. Even more dramatic is the aspect of false statement of fact. If you accuse the offender of making a false factual claim, but it turns out to be correct, you risk a (counter) warning.
Source: OLG Celle, decision of 07.12.2020, ref. 13 W 80/20
Previous instance: LG Stade, order of 30.10.2020, ref. no. 2 O 158/20
We are happy to act as advisors in the entire area of IT/IP and data protection law. We have considerable experience in the area of "inadmissible assessments".
GoldbergUllrich Lawyers 2021
Julius Oberste-Dommes LL.M. (Information Law)
Lawyer and
Specialist lawyer for information technology law
