In its decision of 14 January 2020 (case ref. VI ZR 496/18 and others), the German Federal Supreme Court (BGH) decided that filtering user ratings on rating portals using an algorithm is in general permissible. This also applies when using automated software. The classification of ratings and the display of corresponding average values are protected by the freedom of occupation and opinion.
The defendant operates a rating portal on the Internet where registered users can rate companies. The portal displays all user contributions and classifies them – automated by software and updated daily – either as "recommended" or "(currently) not recommended". When a company is called up, a rating marked with up to five stars is displayed, which is only the average of the user contributions classified as "recommended". At the end of the respective company presentation, the number of other contributions which are "(currently) not recommended" is indicated.
The plaintiff runs fitness studios and considers her rights to be violated by the presentation of her company on the rating portal in accordance with the principle described above. In her opinion, the defendant gave the incorrect impression that the average rating of all submitted contributions was displayed. The distinction between "recommended" and "(currently) not recommended" contributions was made arbitrarily and not on the basis of comprehensible criteria, resulting in a distorted and incorrect overall picture. The plaintiff therefore claims that the defendant should be ordered to cease and desist, to pay compensation for the damages suffered and to be suffered in the future and to pay lawyer's fees.
The District Court of Munich I had dismissed the action in the first instance. In the second instance, however, the plaintiff had been successful: the Higher District Court of Munich largely upheld the action. This is what the defendant opposes with its appeal.
Decision
The BGH restored the decision of the District Court dismissing the action.
First of all, the BGH stated that the claims asserted could not be derived from Sec. 824(1) of the German Civil Code (credit risk) because the defendant had not asserted or disseminated untrue facts. The unbiased and reasonable user of the rating portal could certainly infer from the rating presentation the number of ratings on which it is based and their classification as "recommended".
Furthermore, the challenged rating presentation of the defendant did not unlawfully violate the plaintiff's right of personality and the right to the established and exercised business enterprise (Sec. 823(1) of the German Civil Code). The classification of ratings and the display of corresponding average values by the defendant were protected by its freedom of occupation and opinion. These interests, according to the BGH, outweigh the interests of the plaintiff worthy of protection. Traders must in principle accept criticism of their performance and the public discussion of criticism expressed.
Conclusion
Numerous legal questions regarding Internet-based rating portals are still controversial. The Higher District Court of Cologne and the District Court of Munich I recently declared certain design practices of such portals to be inadmissible (see our previous German language article).
Ultimately, rating portals always also concern consumer protection interests. Whether the judgment of the BGH discussed here takes these sufficiently into account remains questionable. The Higher District Court of Munich, for example, which was involved in the legal dispute in the second instance, stated that users understood "the overall rating shown strikingly at the beginning of the respective page" to mean that it was the evaluation result of all ratings given for the respective company. It compared the case with the legally recognised phenomenon of the "front page or kiosk reader" who does not take note of any relativization or further analysis in the inner section of a newspaper.
From the consumer's point of view, it can be stated that the BGH trusts and demands that Internet users pay attention and are attentive. This case is unlikely to be the last word in relation to rating portals.
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