In a recent decision regarding jameda.de, a website containing user reviews of medical practitioners, the German Federal Court of Justice (Bundesgerichtshof) (the “BGH”) has clarified the duties of medical review website operators, holding that operators of review sites have increased duties to verify reviews (VI ZR 34/15 – judgment of 1 March 2016).
The BGH’s ruling recognises the possibility for misuse of review sites and tries to create a counter-weight by clarifying website operators’ duties to verify reviews in more detail. Operators of review sites are now bound by the ruling and must request documents evidencing the treatment, such as prescriptions, health care vouchers, etc., from the patient. Review site operators must forward such documents to the medical practitioner, at least to an extent not violating the German Telemedia Act.
The suit was brought by a dentist who had requested the website operator to remove a negative review posted by one of its users. The operator removed the post, but later republished it indicating that it had verified the review. The operator asserted data privacy concerns and refused to disclose information requested by the dentist, such as the way the reviewer evidenced the treatment and the reviewer’s “real data”.
The BGH ruled that the website operator was only liable for the reviews posted by its users if it had violated its duty to check them. The scope of such check must be determined on a case by case basis, considering the severity of the legal violation, the website operator’s ability to gain knowledge about the user and the function of the service offered by the operator.
The BGH concluded that the website operator had violated the duty to verify reviews, largely due to the fact that review sites have a comparatively higher risk of personal right infringements than other portals. Users’ ability to post reviews anonymously or under a pseudonym further increased this risk. In addition, reviews posted under a concealed identity made it more difficult for the doctor to take direct measures against the reviewer.
Thus, the BGH ruled that website operators will have to contact users who posted the review at issue and request them to describe the alleged contact and treatment in as much detail as possible. It must also ask the reviewer to submit as many documents evidencing the treatment, such as health care vouchers, prescriptions or other means of evidence, as possible and forward any such information or documents which may be shared without violating Section 12 (1) of the German Telemedia Act (Telemediengesetz). During the pending proceedings, the parties will have the opportunity to make additional submissions regarding the further checks, if any, made by the website operator. However, the operator is not obliged to disclose the reviewer’s name due to the BGH’s 2014 ruling that there is no statutory basis for disclosing registration data.
It is expected that the decision will impact other review sites beyond the medical field, such as restaurant and hotel review sites.