Online review portals (internet reviews) are crucial for many businesses. It is all the more problematic when contributions overstep acceptable boundaries. The spectrum of violations ranges from false factual claims and abusive criticism to insults, slander, or defamation. Sometimes, deliberately false reviews are also placed by competitors to harm another company (fake reviews). We will show you how to effectively defend yourself.
Which reviews must be tolerated?
The Higher Regional Court Celle was presented with the following facts:
An internet portal for employer reviews featured a review about an employer. This review contained, among other things, the assertion that the employer in question had at times paid no salary at all, or at most 10% of the salary upon inquiry.
The employer challenged this review and demanded information from the portal operator regarding the user's IP address, name, and email address, as well as the date and time the review was uploaded. The portal operator refused to provide the information.
The Regional Court Stade ordered the portal operator to provide the information; its appeal to the Higher Regional Court Celle was unsuccessful.
What is permissible and impermissible to post on portals?
According to the Higher Regional Court Celle, the assertion in the review met the criteria for defamation (endangering credit) under § 187 Alt. 3 of the German Criminal Code (StGB). Specifically, the assertion is capable of undermining confidence in the employer's ability or willingness to fulfill financial obligations.
The offense under § 187 StGB also constitutes an interference with the established and operating business, which is an absolutely protected right.
How can I defend myself against unjustified, false reviews?
In cases of clear legal infringements like the present one, you have a claim against the portal operator for the deletion of the objectionable contribution. If the operator does not delete this contribution upon your request and fails to obtain a statement from the author of the review, you even have a claim for injunctive relief against the portal operator.
A claim for deletion is often insufficient. Aggrieved parties frequently seek to assert claims for injunctive relief and/or damages against the perpetrator. To do so, they require information about the perpetrator. The right to information against the portal operator, as stipulated in § 14 para. 3 TMG, provides assistance in such cases.
Is there a general right to information against portal operators?
Categorically: No!
The portal operator is only obligated to provide information in cases defined by § 14 para. 3 TMG. This includes violations of absolute rights such as life, health, property, or an established and operating commercial enterprise. Additionally, it applies to cases under § 1 para. 3 of the Network Enforcement Act, which lists criminal offenses such as crimes against public order, incitement to hatred, insult, and defamation.
What steps should be taken?
Prompt action is imperative for several reasons:
– Portal operators sometimes retain user IP addresses for only a few days. Without this IP address, enforcing your rights against the perpetrator becomes significantly more difficult.
– You have approximately four weeks to file an application for a preliminary injunction, irrespective of whether it is directed against the portal operator or the perpetrator. Swift action increases the likelihood of a successful expedited procedure.
It is highly advisable to seek legal counsel. In specific cases, the distinction between permissible (though potentially borderline) expressions of opinion and abusive criticism or criminal offenses can be ambiguous. For a mere expression of opinion, you have no legal claim. Even more critical is the issue of false factual assertions. Should you accuse the perpetrator of a false factual claim that subsequently proves to be true, you risk receiving a counter-warning.
Source: OLG Celle, Decision of 07.12.2020, Ref. 13 W 80/20
Lower court: LG Stade, Decision of 30.10.2020, Ref. 2 O 158/20
We are readily available to advise you across the entire spectrum of IT/IP and data protection law. Our firm possesses substantial expertise in the domain of "unlawful reviews."
GoldbergUllrich Attorneys at Law 2021
Julius Oberste-Dommes LL.M. (Information Law)
Attorney-at-Law and
Specialist Attorney for Information Technology Law
