Enhanced due diligence obligations for review portals?

Must a review portal such as the doctor review portal Jameda forward a complaint made by an affected doctor to the person giving the review and urge that person to describe the alleged treatment contact in as much detail as possible? The Federal Court of Justice (BGH) has now ruled on the legal question regarding the existing due diligence obligations of such review portals.

The review portal www.jameda.de operates a portal for doctor search and rating. Users can access information and reviews of doctors there. Registered users are permitted to rate the work of doctors on the review portal anonymously.

After a user had rated a dentist very poorly, the dentist felt that his general right of personality had been infringed and demanded that the review portal remove the anonymous review. The dentist furthermore demanded that Jameda inform him in what manner the patient, whose actual treatment he doubted, had substantiated the treatment, which evidence of credibility had been submitted for this purpose, and what "clear data" about the user of the review portal existed based on the available information.

Jameda initially removed the review, but then reinstated it, citing a review that had been carried out in the meantime, in the course of which the person giving the review had been contacted and successfully asked to confirm the review. Jameda did not provide the dentist with further information on account of data protection concerns.

Thereupon the dentist issued a cease-and-desist notice against the operator of the review portal and demanded an injunction on the grounds of infringement of his right of personality.

Decision of the Court

The Federal Court of Justice (BGH) decided by judgment of 01.03.2016 – Az. VI ZR 34/15 – that the review portal Jameda had breached its due diligence obligations and was therefore required to grant the injunction.

The operation of a review portal carries, in comparison to other portals, an elevated risk of infringement of personality rights, in particular since corresponding reviews may be given anonymously. This made it difficult for the person being reviewed to proceed directly against the person giving the review. Therefore, the operator of the review portal was required to forward the complaint made by the affected doctor to the person giving the review and urge that person to describe the alleged treatment contact in as much detail as possible. Furthermore, Jameda was obligated to request the person giving the review to provide evidence that he had actually been treated by the doctor being reviewed. The patient was required to submit such evidence through documents such as, for example, bonus booklets, prescriptions or other indications, as comprehensively as possible. Moreover, Jameda was required to forward these documents to the dentist insofar as there were no data protection obstacles in the individual case.

Conclusion

The judgment of the Federal Court of Justice (BGH) has significantly tightened the due diligence obligations of operators of review portals. In light of the fact that the operation of a review portal carries an elevated risk of infringement of personality rights, the decision of the Federal Court of Justice (BGH) is understandable.