In a Judgment dated 1 March 2016, case no. VI ZR 34/15, the German Federal Supreme Court (“FSC”; Bundesgerichtshof – BGH) specified the scope of monitoring duties of an online rating portal for medical professionals in relation to reviews posted by the users of the portal. If the portal is in breach of its monitoring duties, a medical professional who has been reviewed by a user of the online rating portal is entitled to file an injunction against the portal.
The reasoning of the judgment has not yet been published. However, in a press release of 1 March 2016 the FSC gave some guidance on the requirements under which the provider of an online rating portal might be exposed to injunctive relief by the person reviewed.
Facts of the Judgment
The plaintiff, a dentist, (“Dentist”) filed an injunction vs. the provider of a German online rating portal specialised on reviews of medical professionals (“Portal”). The Portal’s registered users can submit patient reviews on medical professionals and the medical services they provide. The reviews can be posted on an anonymised basis (i.e., without indicating the users’ real names). The rating follows a certain scale, which is similar to school grades, and is divided into several categories, such as “treatment”, “consultation”, “trusting relationship”, “time spent” and “friendliness”. Also, supplementary commentaries can be posted.
One of the Portal’s users submitted a very negative review for the Dentist (“Review”). The Dentist challenged even the allegation that he had medically treated the user. The Portal did not follow the Dentist’s request in the pre-court phase to delete the Review. The Portal forwarded the Dentist’s complaint to the user who had posted the Review. However, the Portal refused to provide the Dentist with the user’s comments, pointing to the User’s privacy.
The Dentist filed an injunction vs. Portal, seeking to prohibit the Portal to make the Review public. The court of first instance (District Court Cologne, case no. 28 O 516/13) held in favour of the Dentist, whereas the Court of Appeal (Higher Local Court Cologne, case no. 15 U 141/14) dismissed the legal action.
Scope of monitoring duties
In the cassation judgment of 1 March 2016 the FSC makes clear that, in general, the Portal shall not be liable for reviews that have been made by other persons, provided that the Portal has not suggested that the reviews have been made by the Portal itself. However, a Portal will be liable if it is in breach of reasonable monitoring duties.
The FSC expressly highlights that the scope of such monitoring duties will depend on the specific facts of the case. The criteria that need to be taken into account are, inter alia:
- the scale of the infringement
- the Portal’s possibilities to gain knowledge
- the nature of the services provided by the Portal
The FSC made clear that under no circumstances may the Portal’s monitoring duties endanger the Portal’s business model or disproportionally impede the Portal’s business operations.
In the case at hand the FSC concluded that the Portal was in breach of its monitoring duties. The FSC stated that the business model of online rating portals typically bears the risk of violations of the right of personality. Such risk is even higher if the user can post reviews in anonymized or pseudonymized form, since the person affected will be faced with substantial hurdles when approaching the relevant user directly. Taking into account the fact that the Dentist challenged even the existence of any treatment of the reviewing user, the FSC requires the Portal to:
- forward the complaint to the user, demanding the user to describe the treatment contact in detail
- demand the user to submit sufficient evidence of the treatment, such as bonus vouchers, receipts or other circumstantial evidence; and
- provide the Dentist with all documents that can be forwarded without falling foul of Section 12 para. 1 of the Federal Telemedia Act (Telemediengesetz). This express reference implies that the FSC takes the view that the Portal shall not be obliged to forward personal data of the relevant user to the Dentist