A recent ruling of the German federal court of justice leaves
providers of online review platforms in a state of shock, which
could extend beyond that country's borders as the judgment will
affect the business models or retail businesses with websites or
online platforms in Germany.
The court held that a service provider is obliged to request
written evidence from its users in case a review is challenged.
This puts providers in the position of a court and is likely to
have a chilling effect on the use of review platforms. It will also
result in negative reviews being taken down if there is no written
The underlying case concerned a review on the Jameda platform, a
German review website for doctors and medical services. The
plaintiff, a dentist, objected to a negative score in several
multiple choice categories ("treatment",
"information", "trust relationship).
In the text field, the anonymous reviewer mentioned that he
"cannot recommend" the doctor and referred to the
"grades section" for a more detailed assessment,
emphasising that the grades were "diligently chosen". The
doctor questioned whether the reviewer had ever received treatment
from him, and after receiving the original complaint from the
dentist, the service provider asked the reviewer to confirm his
review, which he did.
The court held that the doctor's questioning of the alleged
treatment was "sufficiently specific" to trigger
obligations under the hosting defence laid down in European
e-commerce law "as the review did not contain any description
of the alleged appointment" and that, therefore, the doctor
was "unable to provide any more detail for his
The court then prescribed a detailed regime regarding the duties
of the platform: it would have been obliged to investigate the
underlying facts by "requesting a description of the alleged
appointment as well as evidence such as invoices, entries in a
patient's bonus notebooks, prescriptions or other suitable
evidence" from the reviewer. As these obligations were not
met, the factual assertions of the plaintiff were deemed
The judgment is worrying as it may have a serious impact on the
legal environment of review platforms. It puts service providers in
the position of a judge by imposing a duty to investigate matters.
It ignores the reality of how review platforms operate, as
typically a user would not retain bills from, say, a restaurant or
The ruling will have a chilling effect because service providers
will be forced to take a review down where no evidence can be
produced by the user, and because users will think twice before
publishing negative reviews given the high risk of incurring time
and effort defending them.
This amounts to a violation of the platform's rights under
the EU hosting defence regime and the platform's constitutional
right to freedom of speech under German constitutional law.
Against this background, the assertion of the court that a service
provider "cannot be forced to carry out an audit which is
economically compromising or disproportionately impedes its
function" looks like a fig leaf.
The article was published
in The Brief on 29 April.
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