In recent years the courts have increasingly had to deal with statements made on rating platforms. Jurisdiction on this matter can be complex and extensive.

Facts

In December 2015 a Munich court had to decide whether the statement "running out of the doctor's office" was protected by freedom of opinion or whether it was a factual claim. The rating platform provider had to verify the truth of the statement or be forced to delete it.

A physician demanded that the rating platform provider delete an assessment about the physician and his services. He claimed that the patient had not run out of his office, but had walked out at a normal speed, and that the term 'running out' was false and must be deleted.

Decision

The court decided that the physician had no right to demand deletion of the statement. It held that the expression was not a factual claim, but rather an expression of opinion, and that the patient had merely expressed his dissatisfaction with the treatment carried out by the physician. The court indicated that third parties would understand the statement in this way, since it is unlikely that people would think that a patient would exit a doctor's office by actually running out of the building. The statement was therefore protected by freedom of opinion.

Patients are protected by freedom of opinion and rating platform providers are protected by freedom of communication. This outranks the physicians' right to self-determine any information about themselves. If a rating platform provider is instructed to delete a statement, it would find itself restricted in its commercial activities; whereas a physician will be affected in his or her sphere of work where he or she is observed by the general public and open to criticism regarding his or her performance.

A physician can demand the deletion of statements regarding his or her work if a statement severely affects the physician as an individual (eg, stigmatisation or social exclusion).

Comment

The decision substantiates general jurisdiction regarding rating platforms. When determining whether a statement is opinion or fact, it is advisable to read between the lines. Although a statement may appear factual, it could prove to be an expression of opinion on closer inspection. Physicians must accept that they can be assessed on rating platforms, as long as the assessment is truthful or protected by freedom of opinion.

For further information on this topic please contact Franziska Ladiges at SKW Schwarz Rechtsanwälte by telephone (+49 69 630 001 0) or email (f.ladiges@skwschwarz.de). The SKW Schwarz Rechtsanwälte website can be accessed at www.skwschwarz.de.

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