The VIII Civil Senate of the Federal Court of Justice, which is responsible, among other things, for the law of sales. Civil Senate of the Federal Court of Justice ruled on 28.09.2022 on the question of the conditions under which the seller, who sells a product via the Internet platform eBay, has a claim against the buyer for the removal of a negative review submitted by the latter.
Facts:
The defendant purchased four hinge bolt clamps from the plaintiff via the Internet platform eBay for € 19.26 gross. Of this amount, €4.90 was attributable to the shipping costs charged to the defendant. The sale took place on the basis of the General Terms and Conditions of eBay applicable at that time, which the parties had agreed to prior to the transaction. There it says in part:
"§ 8 Assessments
[...]
2. users are obliged to provide only truthful information in the reviews they submit. The reviews submitted by users must be factual and may not contain any abusive criticism.
[...]".
After receiving the goods, the defendant rated the transaction in the plaintiff's rating profile provided by eBay with the entry "Goods good, shipping costs usurious!!!".
Process history so far:
The Local Court dismissed the claim for removal of this assessment and reimbursement of pre-court attorney's fees. In the opinion of the Local Court, the description of the shipping costs as "usurious" is a value judgment that is only inadmissible if it constitutes defamatory criticism. However, this was not the case. The assessment had a factual reference because it was placed in a context with the shipping costs.
On appeal by the plaintiff, the Regional Court amended the judgment of the court of first instance and ordered the defendant to remove the rating and to reimburse pre-trial attorney's fees as requested. In the view of the Court of Appeal, the defendant had breached a post-contractual accessory obligation (Section 280 (1), Section 241 (2) BGB). The evaluation violates the requirement of objectivity from § 8 No. 2 sentence 2 of the General Terms and Conditions of eBay (hereinafter: eBay GTC). From this results a protection going beyond the defense of defamatory criticism. The rating "Shipping costs usurious!!" is an exaggerated assessment without factual reference, which is not justified because it is not recognizable for an objective reader why the shipping costs are "usurious" from the buyer's point of view.
In his appeal, which was allowed by the Court of Appeal, the defendant seeks the restoration of the judgment of the court of first instance.
Decision of the Federal Supreme Court:
The appeal of the defendant was successful. The VIII. Civil Senate of the Federal Court of Justice ruled that the plaintiff is not entitled to a claim for the removal of the rating "Shipping costs usury!
Contrary to the view of the Court of Appeal, the provision of Section 8 (2) sentence 2 of the eBay General Terms and Conditions does not contain any stricter contractual restrictions on the admissibility of value judgments in rating comments beyond the generally applicable (tort law) limit of abusive criticism for value judgments.
It is true that the wording of the clause is not clear. However, the understanding that the requirement of objectivity in § 8 para. 2 sentence 2 of the eBay GTC should not have an independent weight compared to the prohibition of defamatory criticism is already supported by the fact that precise definitions of the undefined legal term "objective" are missing in the General Terms and Conditions. In this case, it is in the well-understood interest of all parties involved to align the admissibility of evaluations of a transaction relevant to fundamental rights (Art. 2 (1), Art. 12 GG [for the seller], Art. 5 (1) sentence 1 GG [for the buyer]) with the established principles of the supreme court case law on defamatory criticism and thereby to outline the requirements for the admissibility of evaluation comments as tangibly and reliably as possible for the users and eBay itself. In addition, there would have been no need for a separate mention of the limit for abusive criticism if a much stricter restriction had been imposed on the user by the requirement to keep reviews factual. In addition, the freedom of opinion of the reviewer, which is guaranteed by fundamental rights, would be accorded less weight than the fundamental rights of the seller from the outset if an expression of opinion by a buyer were regularly classified as inadmissible if it is formulated in a disparaging manner and/or is not based (entirely or predominantly) on factual considerations. Such an interpretation, which does not sufficiently take into account the fundamental rights, does not correspond to the understanding of honest and reasonable contracting parties, which is based on the interests of the typically involved public.
The borderline to defamatory criticism has not been crossed by the assessment "Shipping costs usury! Because of its restrictive effect on the fundamental right to freedom of opinion under Article 5 (1) sentence 1 of the German Basic Law, the term "defamatory criticism" is to be interpreted narrowly according to the case law of the Federal Court of Justice. Even exaggerated, unfair or even abusive criticism does not in itself make a statement defamatory. Rather, it must be the case that the statement no longer focuses on the substance of the dispute, but rather on defaming the person concerned, who is to be disparaged and pilloried, as it were, beyond polemical and exaggerated criticism.
This is missing here. Defamation of the plaintiff is not in the foreground in the evaluation "Shipping costs usurious! This is because the defendant is critical - albeit in a sharp and possibly exaggerated manner - of a sub-area of the plaintiff's commercial performance by objecting to the amount of the shipping costs. The admissibility of a value judgment does not depend on whether it is accompanied by a statement of reasons.
Lower courts:
AG Weiden in der Oberpfalz - 1 C 140/20 - Judgment of June 22, 2020
LG Weiden in der Oberpfalz - 22 S 17/20 - Judgment of October 28, 2020
No. 141/2022
Judgment of the Federal Court of Justice of September 28, 2022 - VIII ZR 319/20
Source: Press release of the BGH No. 141/2022 of 28.09.2022
