In a Judgment dated 1 March 2016, case no. VI ZR 34/15, the
German Federal Supreme Court ("FSC";
Bundesgerichtshof – BGH) specified the scope of
monitoring duties of an online rating portal for medical
professionals in relation to reviews posted by the users of the
portal. If the portal is in breach of its monitoring duties, a
medical professional who has been reviewed by a user of the online
rating portal is entitled to file an injunction against the
The reasoning of the judgment has not yet been published.
However, in a press release of 1 March 2016 the FSC gave
some guidance on the requirements under which the provider of an
online rating portal might be exposed to injunctive relief by the
Facts of the Judgment
The plaintiff, a dentist, ("Dentist")
filed an injunction vs. the provider of a German online rating
portal specialised on reviews of medical professionals
("Portal"). The Portal's registered
users can submit patient reviews on medical professionals and the
medical services they provide. The reviews can be posted on an
anonymised basis (i.e., without indicating the users' real
names). The rating follows a certain scale, which is similar to
school grades, and is divided into several categories, such as
"treatment", "consultation", "trusting
relationship", "time spent" and
"friendliness". Also, supplementary commentaries can be
One of the Portal's users submitted a very negative review
for the Dentist ("Review"). The Dentist
challenged even the allegation that he had medically treated the
user. The Portal did not follow the Dentist's request in the
pre-court phase to delete the Review. The Portal forwarded the
Dentist's complaint to the user who had posted the Review.
However, the Portal refused to provide the Dentist with the
user's comments, pointing to the User's privacy.
The Dentist filed an injunction vs. Portal, seeking to prohibit
the Portal to make the Review public. The court of first instance
(District Court Cologne, case no. 28 O 516/13) held in
favour of the Dentist, whereas the Court of Appeal (Higher
Local Court Cologne, case no. 15 U 141/14) dismissed the legal
Scope of monitoring duties
In the cassation judgment of 1 March 2016 the FSC makes clear
that, in general, the Portal shall not be liable for reviews that
have been made by other persons, provided that the Portal has not
suggested that the reviews have been made by the Portal itself.
However, a Portal will be liable if it is in breach of reasonable
The FSC expressly highlights that the scope of such monitoring
duties will depend on the specific facts of the case. The criteria
that need to be taken into account are, inter alia:
the scale of the infringement
the Portal's possibilities to gain knowledge
the nature of the services provided by the Portal
The FSC made clear that under no circumstances may the
Portal's monitoring duties endanger the Portal's business
model or disproportionally impede the Portal's business
In the case at hand the FSC concluded that the Portal was in
breach of its monitoring duties. The FSC stated that the business
model of online rating portals typically bears the risk of
violations of the right of personality. Such risk is even higher if
the user can post reviews in anonymized or pseudonymized form,
since the person affected will be faced with substantial hurdles
when approaching the relevant user directly. Taking into account
the fact that the Dentist challenged even the existence of any
treatment of the reviewing user, the FSC requires the Portal
forward the complaint to the user, demanding the user to
describe the treatment contact in detail
demand the user to submit sufficient evidence of the treatment,
such as bonus vouchers, receipts or other circumstantial evidence;
provide the Dentist with all documents that can be forwarded
without falling foul of Section 12 para. 1 of the Federal Telemedia
Act (Telemediengesetz). This express reference implies
that the FSC takes the view that the Portal shall not be obliged to
forward personal data of the relevant user to the Dentist
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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