Do you have to accept that your performance is rated poorly on the „german“ internet, though it was actually quite decent (if one were to ask you)? Who is liable for misleading statements in customer reviews? And are platforms like the german physician rating portal „Jameda“ actually allowed to store my data ‚just like that‘?
This article explains the legal situation im Germany regarding reviews on Amazon, Jameda, Kununu, Google and elsewhere.
Contents:
I. Initial situation in defamation law: opinions vs. facts
II. Starting point even for “silent reviews”: the factual basis
III. GDPR and automatically generated rating profiles: complete deletion of “involuntary” profiles
IV. Buying op incentifying reviews (is unlawful)
V. (No regular) liability of the business for reviews
VI. Practical tips
I. Initial situation in defamation law: „opinions“ vs. „facts“
Opinions are opinions, facts are facts – but opinions don’t float free of facts
A star or grade rating is more difficult to challenge than free text included in a review – this is, of course, old hat . Simply because defamation law is based on a fundamental distinction between opinions in the narrow sense and factual assertions. Opinions, according to established german case law, are statements that are evaluative. They are characterized by approval or disapproval. Their counterparts are factual assertions: statements that “can be proven true or false”. This distinction matters. Because only true factual assertions are protected by freedom of expression under Art. 5(1) of the German Grundgesetz Law (and, of course, Art. 11 of the Charter of Fundamental Rights of the European Union). And: The person making the assertion bears the burden of proving its truth. Applied to online reviews, this means:
- Star ratings are evaluative judgments and therefore, by definition, not “right” or “wrong”. The person being reviewed must basically accept such judgement by a customer. Even if they consider their performance to be much better than “one star”: that does not make the one‑star rating “wrong” (fundamentally Federal Court of Justice (BGH), judgment of 23.06.2009, ref. VI ZR 196/08 – Spickmich).
- Thus, free‑text reviews are fare more dangerous for the reviewer and the natural first line of attack for the person reviewed: If they contain factual assertions, those assertions must be “true”. “False” factual assertions must not be made. Because the accuser bears the burden of proof, will regularly be deemed legally “false” if the reviewer is unable to prove it.
Unsurprisingly, the distinction between facts an judgements / opinions (which only appears simple at first glance) often shifts detailed disputes to the question of whether a particular statement is a factual assertion or an evaluative judgment – or even contains elements of both . But as a basic rule: the mere existance of free text in a review already makes it way easier to take action against it.
II. A key line of attack against “bare-star” ratings: missing factual basis
Truth be told: If someone wants a review to „go away“, 9 out of 10 cases it’s not because of some borderline wording in the free text portion of a review.
A, by fare, more important factor: The number of points or stars in the review. In particular: the overall points or star rating of business is the key metric, business owners focus on. Because the average score of all reviews is usually displayed very prominently not only on the review-platform itself. It but may even appear in native search results on Google or Bing; many business owners use plugins precisely to achieve that result.
Therefore, a “bare” one‑star review is particularly damaging even if the (possibly infringing) free text is missing or has been deleted afterwards. Because it significantly drags down the average score, depending on the total number of reviews.
So, what now?
Freedom of expression, german Version: a proper “factual basis”, Please
The magic term here is “factual basis”, which in relation to Jameda and other physician rating portals is often narrowed down to the notion of a “treatment contact”:
Even star or point ratings may not be submitted out of thin air, regardless of freedom of expression. German case law (Federal Court of Justice, judgment of 1.3.2016, ref. VI ZR 34/15) explains this with the need for a “factual basis”, which must also exist for a purely evaluative statement. Because also a bare-star rating contains the implicit (factual) assertion that the service being evaluated was provided and the reviewer actually “came into contact” with it.
If this factual basis is missing – no treatment contact or other contact with the reviewed service; reviewing employee never worked for the reviewed employer, etc. – this factual assertion is false and the review is therefore unlawful.
However, merely asserting to the platform that there was no contact will usually not be enough to obtain deletion. After all, negative reviews can be particularly valuable for users of rating platforms and therefore constitute an important part of the platforms’ business model. The larger platforms have therefore implemented the requirements laid down by the courts and maintain complaint management systems („notice and takedown“) in order to clarify precisely these questions with users in the event of complaints. However, this process can take some time and is not always successful in a sense that the dispute can be resolved without courts providing assistance.
III. GDPR and automatically generated rating profiles: complete deletion of “involuntary” profiles
Because they do not want do to deal with false or perceived unfair reviews, many physcians would prefer not to be publicly rated at all rather than being rated poorly. Therefore they seek the complete deletion of their data from platforms such as Jameda, as these platforms usually create profiles unilaterally and without the involvement of the physicians concerned.
And indeed: the German Federal Court of Justice (BGH) has upheld corresponding actions brought by doctors (judgment of 20.02.2018, ref. VI ZR 30/17); as has the Higher Regional Court of Cologne (Oberlandesgericht Köln, judgments of 14.11.2019, ref. 15 U 89/19 and 15 U 126/19) in relation to “various past and current versions of Jameda” .
Alas: The crucial point in these decisions was less, wether or not a right to be spared from reviews actually exists. It was a detail in Jameda’s business model. Until 2018, the platform was not as neutral as it appeared and liked to make believe:
If someone searched for a particular doctor, the result page would not only showh that particular doctor. It would also list local competitors and further information about them – with that additional information highlighted for customers, who chose to pay for a premium profile of the platform.
However, any reference to local competitors was omitted from the profiles of those premium customers. This was deened a violation of neutrality in favor of the platform’s own revenue by the courts. When assessing whether the processing of personal data of the affected doctors could be justified by Jameda’s legitimate interest (Art. 6(1)(f) GDPR), courts concluded that it could not – because in doing so, the rating platform abandoned its role as a “neutral information intermediary”.
Since the collection and storage of this data by Jameda therefore already lacked a legal basis, a right to deletion arose (Art. 17(1) GDPR).
IV. Buying or incentifying good reviews (is unlawful)
As discussed, for many businesses the major problem is not so much a single negative review as merely the impact such a review has on the overall rating. Because the average rating is considered the key metric that users pay most attention to; it is also often displayed in search engine results.
The impact of a negative review is particularly large wherever there are not too many positive reviews to offset it. Busniness owners do the math and many are tempted to “help things along” by simply turning to a review broker and purchasing positive reviews. A lot of them. This way, one or even several „bad“ reviews seem easier to deal with.
Unfortunately, german case law on these practices ahs been very clear for many years now: It is unlawful (unter competition law) to buy good reviews as well a to bribe customers to post good reviews (Higher Regional Court of Frankfurt am Main (OLG Frankfurt), judgment of 16 May 2019 – 6 U 14/19; Regional Court of Munich I (LG München I), judgment of 14 November 2019 – 17 HK O 1734/19 (Fivestar/HolidayCheck)).
V. (No regular) liability of the business for reviews
What if reviews are positive but nonetheless unlawful because, for example, they contain misleading or otherwise illegal claims? The Federal Court of Justice (BGH, judgment of 20.2.2020, ref. I ZR 193/18) had to address this question in relation to a muscle tape offered on Amazon, where a review (but not the seller themselves) attributed certain unprovable properties to the product. The seller would have acted unlawfully under competition law if they had described their product in this way themselves, leading to the question: When must a seller be held responsible for unlawful statements contained in reviews?
In that specific case, the Federal Court of Justice denied any attribution. The seller had neither actively advertised using the reviews nor instigated them, nor had they appropriated them. The ruling was therefore greeted with a sigh of relief.
Still, be aware: This does not statue a carte blanche to “play dumb” when it comes to unlawful advertising claims made in reviews. If the business actively advertises with such reviews (e.g. via rating widgets) or appropriates them (which may already be the case when such reviews are manually approved or when the business comments on them in a certain way), the review can indeed be attributed to the business and lead to liability.
VI. Practical tips
In practice, there are indeed other avenues for dealing with reviews where you do not get anywhere with the above‑mentioned arguments vis‑à‑vis the platform.
As already mentioned, it is usually not that easy for affected individuals – another “trap” awaits professional secrecy holders such as doctors – or lawyers, for that matter – in the form of their strict confidentiality obligations. Under narrow conditions, it may be permissible to disclose information subject to confidentiality to third parties (as reviewing platforms) if, after a balancing of interests, this is necessary for the protection of legitimate interests. But this is a extremely delicate subject which must be assessed with utmost care. Breaches of professional secrecy are no trivial matter and can have very unpleasant criminal consequences (§ 203 German Criminal Code).
On the other hand, in cases where the reviewed person knows who has reviewed them (precisely because, for example, there really was a “treatment contact”), it is usually more promising to address the author of the review directly – for them, it is only about a single review, not about their business model. This approach generally leads to a solution much more quickly, especially if some time has already passed since the review was posted.
As always, it depends on the individual case.
And sometimes an open conversation may already help.