Enforcement of cancellation claims
Reviews from buyers, patients, guests and customers on portals as diverse as Google, Amazon, Ebay, Jameda, Tripadvisor, etc. are becoming increasingly important when deciding on an online store, a doctor, a hotel or a restaurant.
If these reviews are negative, they can be damaging to business because they discourage customers from buying, guests from booking a hotel, or patients from choosing a doctor’s office. If they are untrue, insulting or obviously illegal, there is usually a right to delete them.
Right to delete untrue ratings, inadmissible expressions of opinion or obviously illegal content
It is not possible to take action against every bad review, because reviews are generally covered by freedom of opinion. This has been established by the Federal Court of Justice in several judgments (“Spickmich” judgments VI ZR 196/08 and VI ZR 358/13).
However, a claim for the deletion of reviews exists if they.
(1) lead to a permanent impairment of reputation due to a condition created by the untrue statement of fact (BGH judgment of July 28, 2015 – VI ZR 340/14),
(2) insult to be assessed as an inadmissible expression of opinion leading to a general violation of personality or
(3) have obviously illegal content in accordance with the Network Enforcement Act (NetzDG).
Portal operator as addressee of the deletion claim
In many cases, the author does not use his or her clear name. Since it is difficult to assert a claim for information against the portal operator, it makes sense to address the request for deletion directly to the portal operator. As a so-called host provider, the portal operator is not obligated to check third-party reviews for possible legal violations prior to publication, but it is obligated to investigate specific complaints and to delete the reviews published on its portal in the event of legal violations that can be affirmed on the basis of the allegation (see BGH, judgment dated March 1, 2016, Case No. VI ZR 34/15 – jameda.de II).
Content of the complaint
The request to the portal operator to remove the negative review should contain more than just the blanket assertion that the criticism is incorrect. It must be specific enough to enable the portal operator to make a decision as to whether the alleged legal violations exist (see above, BGH – jameda.de II).
It is also important to set a deadline for the examination of the complaint.
In the case of obviously illegal content under the Network Enforcement Act (NetzDG), such as hate speech, threats or obvious insults, the online rating must be deleted within 24 hours (Section 3 (2) No. 2 NetzDG).
If the request for deletion was not successful, the next step is to issue a warning to the portal operator, which is then followed by either an application for a temporary injunction or the filing of a lawsuit.
Application for a temporary injunction
If the portal operator or the author does not respond to the warning, an application for a temporary injunction can be filed if there is a reason for the injunction. The request of the plaintiff for the injunction must be urgent, so that he cannot be expected to take the path of legal action and wait for the issuance of an enforcement order. Whether the required urgency exists depends on the specific circumstances of the individual case. As a rule, however, a delay of more than one month can be regarded as detrimental to urgency. (OLG Nuremberg, decision dated 13.11.2018 – 3 W 2064/18): Evaluation of a physiotherapist on Google)
Urgency is also lacking if the rating system of the platform operator provides for the possibility to submit a counter-comment to the negative rating in order to give the affected person the opportunity to exercise his rights and to prevent impending serious disadvantages until a judgment is issued. (Cologne Higher Regional Court, judgment dated March 8, 2012 – 15 U 193/11: Evaluation of the operator of an online store on ebay).
Action for cancellation
If the application for a temporary injunction is granted, but the injunction is not enforced within one month (pursuant to Section 929 (2) of the German Code of Civil Procedure), it is necessary to file a lawsuit to enforce the claim for cancellation.