On March 1, 2016 the German Federal Court of Justice ruled on the duty of an online review portal operator to verify reviews.
ONLINE REVIEW PORTALS
The internet offers numerous opportunities for customers and individuals to provide feedback and reviews on third party service providers, such as reviews on physicians, restaurants, lawyers or hotels. In most cases, such reviews are published anonymously or under an alias. For such reviewed service providers, negative reviews can have severe consequences on their business.
POOR RATINGS FOR A DENTIST ON AN ONLINE REVIEW PORTAL
A dentist has received a negative review on such a review portal from a user posting under an alias. On a scale from 1 to 6, with 6 as the lowest grade, the dentist received an overall grade of 4,8 from the user, and in the categories treatment, consultation and trusted relationship the lowest grade 6. The dentist claimed that he never treated this patient and required the operator to remove the review. The portal operator informed the user about the reaction of the dentist and removal claim. Apparently the operator received a response from the user to this claim; however, the portal operator did not provide the response from the user to the dentist due to alleged data privacy concerns. Furthermore, the portal operator kept the review on its website.
DUTY TO VERIFY STATEMENTS AND REVIEWS ON A REVIEW PORTAL
Even though the review was not posted by the portal operator itself, the Federal Court of Justice held that the operator is still liable for such a review if the operator violates reasonable verification duties. The scope of the verification duties requires a case-by-case assessment taking into consideration (1) the severity of the alleged legal violation, (2) the ability of the operator to gain further information, and (3) the function of the services provided via the portal. However, the scope of the verification duties must not economically jeopardize the business model of the operator or severely hamper the business activity in an unreasonable manner.
In the case at hand, the Federal Court of Justice held that the operator did violate its verification duties: The ability for users of the portal to publish reviews anonymously or pseudonymously creates an increased risk of personal right violations. The dentist was unable to bring a claim directly against the user as he/she remained anonymous for him. Therefore, the portal operator was required to request from the user, after receipt of the complaint from the dentist, to describe in detail the doctor visit in question and to submit evidence to proof the treatment by the dentist, such as health care vouchers or prescriptions. Furthermore, the operator was required to forward such information and documents to the dentist which the operator may share without violating Sec. 12 para 1 of the German Telemedia Act.
This decision by the Federal Court of Justice will impact any kind of online review portals. Any operator of such a portal should implement a procedure to verify the reviews in case of objections. However, it is not clear from this judgment under which conditions the portal operator is permitted to share any information and documents, that are provided by the user following a complaint, to the reviewed service provider without violation Sec. 12 para 1 of the German Telemedia Act. Sec. 12 para 1 of the German Telemedia Act reads as follows:
“The [telemedia] service provider may collect and use personal data for the [purpose of the] provision of telemedia only to the extent that this [German Telemedia] Act or another statutory provision referring expressly to telemedia permits it or that the user of the [telemedia] services has given his/her approval.“
As there is no specific provision that permits the transfer of such information and documents which respond to online review complaints, the portal operator needs to assess on a case-by-case basis whether and to what extent such a data transfer to the reviewed service provider is permitted by a general justification ground. Even if the portal operator removes any directly identifiable personal data of the user from such information and documents, it may still be possible for the reviewed service provider to identify the user; hence, the restrictions for transfer of personal data would still apply. Consequently, it remains the responsibility of the portal operator to determine and to ensure that a transfer of such information and documents to the reviewed service provider is permissible. Once the full text of the judgment is published, it needs to be assessed whether the court has provided further guidelines on this aspect.
Portal operator will also face another challenge: In the case at hand, the reviewed service provider claimed that the user was never his patient and therefore the entire review was false. Hence, the portal operator has held obliged to verify whether or not the user has been a patient of the dentist or not, and the user was considered to be able to respond to this complaint by providing proof that he/she was in fact a patient. However, how can a portal operator verify whether or not the actual grade is justified or whether the quality of the service was in fact poor if the complaint is directed at the substance of the review? Where does the duty to verify end? The restrictions provided by the court are rather unspecific: the scope of the verification duty must not economically jeopardize the business model of the operator or severely hamper the business activity in an unreasonable manner.