Life just became harder for rating platforms: The German Federal Court of Justice (Bundesgerichtshof) further specified the obligations of a user generated content platform provider with regards to investigating factual background of user generated content on rating platforms. The court held, that the platform host provider in case of a complaint may not rely on the host provider privilege (based on Art. 14 E-Commerce Directive) unless he has requested further background information with regards to the user content and has shared such additional background information with the complainant.
The claimant, a dentist, requested the deletion of a negative rating for his service on a medical rating platform. The platform provider forwarded the complaint to the user who published the rating on the platform and asked for further background information. However, the platform provider refused to forward the information he had received from the user to the claimant for data protection reasons. The claimant sued the platform provider and asked for the deletion of the rating.
The Federal Court of Justice confirmed the dentist’s claim. The court ruled, that the platform provider is in the position and obliged to further investigate the factual background of user generated content by requesting further information from the user who had submitted the rating. The platform provider is further obliged to provide the claimant with such additional background information. He may not refuse such information requests of the claimant by reference to data protection. In its press release, the Court points out that rating portals generally carry a high risk of infringing third parties‘ personal rights, in particular because ratings may be submitted anonymous or under a pseudonym. The Court found that this risk justifies an obligation for the platform provider to obey higher investigation requirements under the host provider privilege. In the case the Federal Court of Justice found, that the platform provider did not obey his investigation and information obligations towards the claimant and therefore was obliged to delete the negative rating.
Practical Impact for rating platforms?
The Federal Court of Justice further specified the system of notice and take down mechanism for rating platforms. The recent judgement is a follow-up case to the „blogspot decision“ of the Federal Court of Justice (VI ZR 93/10). The blogspot decision established a hearing mechanism for ugc-platforms allowing them to further investigating factual background before deleting content after a take-down-notice. The blogspot-mechnism allowed the platform provider to keep negative ratings on the platform and consider factual background information. The recent case, however, is a backlash for the platform providers: The platform provider may no longer solely rely on the blogspot-mechanism but has further obligations to investigate and share information with the complainant. The court puts more pressure on the platform provider.
The decision is on a rating platform for medical services. However, we can expect that those investigation obligations and principles will apply for product rating platforms or other user rating systems. Platform providers will need to establish a background investigation procedure in its notice and take down process if it wishes to keep also negative ratings on their platform.
Case No. VI ZR 34/15 (Decision of 1 March 2016)