In a recent decision, the Federal Court of Justice (Bundesgerichtshof), the highest court in the system of ordinary jurisdiction in Germany, established a case of intermediary liability for anonymous reviews published in review portals, which are under the obligation to verify the accuracy of the review upon request. This case departs from previous case law, which has usually seen review portals prevailing in court.
Review portals have been recently highly involved with the development of intermediary liability law in Germany. The numerous cases dealing with online rating services are due to the fact that—in application of the so called Stoererhaftung doctrine—the courts have to balance the provider’s freedom of speech and the affected person’s personal rights on a cases-by-case basis. In the past, review portals have been victorious in court. The Bundesgerichtshof has ruled that the online-evaluation of professionals, such as teachers doctors, or hoteliers, is permissible. Furthermore, the portals do not have to check every review before publication because such unreasonable duty would challenge the entire business model of the platform operator. The legal situation after the person affected has notified the provider is, nevertheless, unclear. It is undisputed that the portal has to take down bogus reviews. However, according to the Sanego decision and the provider privilege of § 12 TMG, the provider is not obliged to disclose the reviewer’s personal information.
In the given case, an anonymous internet user evaluated the plaintiff, a dentist, with the equivalent of a D minus on Jameda.de—a specialized physician rating portal. The court made clear that the provider is only liable if it breaches the duties of care of the Stoererhaftung doctrine. However, the Court noted that the "operation of a review portal carries an increased risk of defamation compared to other portals" and "this risk is enhanced by the ability to add reviews on an anonymous or pseudonymous basis." Therefore, a provider is obligated to verify the review if the anonymity of its portal makes it difficult for the person affected to directly address the reviewer. According to the Court, the portal should have requested the reviewed her treatment documentation, including medical records, prescriptions and other evidence. Moreover, the provider has to pass on that part of information which is not privileged under § 12 TMG to the person affected by the review.
The Jameda decision is available here (in German only).