Does an online review portal fundamentally remain liable for the reviews submitted by its users? The Federal Court of Justice has denied such liability.
A hotel owner demanded that a well-known hotel review portal cease and desist from making a factual claim that was untrue and considered damaging to the hotel owner's business. In this review portal, under the heading For €37.50 per night per person in a double room, there were bedbugs a review of the plaintiff's hotel was published.
In this hotel review portal, users can rate hotels on a scale from one (very bad) to six (very good). Certain average values and a recommendation rate are then calculated from these ratings. Before individual user reviews are included in the portal, they go through word filter software that is intended to detect insults, defamatory criticism, and self-ratings by hotel owners, among other things. Unobtrusive reviews are published automatically. Filtered-out reviews are checked by employees of the hotel review portal and then, if necessary, manually approved.
Following a warning from the hotel owner, the hotel review portal removed the complained-about review, but refused to provide the cease and desist declaration with a penalty for violation.
Decision of the court
After the hotel owner's lawsuit had already been unsuccessful in the lower courts, the Federal Court of Justice also dismissed the appeal against the appellate court's decision with a ruling dated March 19, 2015 – I ZR 94/13Press release) was rejected, and it was decided that the operator of a hotel review portal is not liable for violations of competition law (specifically Section 4 No. 8 of the German Act Against Unfair Competition or Section 3 (1) of the German Act Against Unfair Competition) for claims of untrue factual statements made by a user on their portal.
The contested user review, according to the Federal Court of Justice (BGH), is not an intrinsic "assertion" of the review portal, because the portal neither adopted it in substance through the examination of reviews nor through statistical analysis.
According to the Federal Court of Justice, the review portal did not "disseminate" the assertion either. The liability of a service provider within the meaning of the Telemedia Act is limited if, as in this case, it assumes a neutral role. Liability for untrue factual assertions made by a third party only arises if specific examination obligations have been violated, the intensity of which depends on the circumstances of the individual case. These include the reasonableness of the examination obligations and the recognizability of the legal violation. However, a service provider must not be imposed an examination obligation that jeopardizes its business model economically or makes its activities disproportionately difficult.
The Federal Court of Justice has denied a violation of such a specific duty to examine. An upfront substantive review of user reviews is not considered reasonable. In the dispute, there were also no indications that the defendant operates a highly dangerous business model that would trigger special duties to examine.
Conclusion
Therefore, due to the breach of duty of care, there would only have been liability for injunctive relief if the operator of the internet portal had become aware of a clear violation of rights and nevertheless failed to remedy it. However, this was not the case here.
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