Germany: Damage to reputation vs. freedom of opinion - What can be done against bad reviews on the Internet under German law?

When is a negative company review in Germany to be classified as unlawful?

Negative company reviews are unlawful and therefore impermissible if the review is either an untrue assertion of facts or its content is no longer covered by freedom of expression. The question of differentiation is often difficult. If the focus of the statement made is on a core of facts that can be proven, it is an assertion of facts. For example, a “single-star review” without accompanying text was last classified as an implicit assertion of facts in Google Maps (Nuremberg Higher Regional Court, judgment dated 17 July 2019, 3 W 1470/19). If, however, the review is significantly characterised by elements of comment, view or opinion, it represents a statement that falls within the scope of the protection of freedom of expression in accordance with to Art. 5 GG (Grundgesetz, [German Basic Law]). Insults, abusive criticism and credit-endangering claims are not permitted, for example.

What measures can be taken against unlawful reviews?

The data subject is entitled to a claim for injunctive relief. This is first asserted via a legal warning. In this case, the review portal is requested to remove the unlawful review and sign a cease-and-desist declaration. In the cease-and-desist declaration, the party who has been warned undertakes to no longer use the review. Any breach of this obligation shall be subject to a contractual penalty. This can be determined on a flat-rate basis or placed at the discretion of the person concerned. If the person warned does not agree with the amount in the latter case, he or she can have this reviewed by the court for its appropriateness. If the person concerned refuses to submit the cease-and-desist declaration, an urgent procedure can be initiated in court regarding an application for a temporary injunction and/or an action for a cease-and-desist can be filed. Claims for compensation by the data subject are also possible. However, it is difficult to prove that the damage incurred is based on the unlawful review.

Can you buy positive fake reviews as a company?

Yes. However, the decisive factor is the question of whether and how it may be advertised. According to the case law of the Federal Court of Justice (BGH, judgment dated 20 February 2020, I ZR 193/18), the provider is liable for falsified customer reviews for which it pays or which can be attributed to it for other reasons. Such reviews must be identified as “paid” reviews, as the Higher Regional Court of Frankfurt am Main recently decided (decision of 22 February 2019, 6 W 9/19). If this is not done, companies that write fake reviews for a fee can also be liable as accessories. In addition, most online trading platforms prohibit customers from using purchased reviews through their T&Cs.

Autor: Dr. Karolin Nelles