Liability of rating portals

Is an internet rating portal generally liable for assessments made by users? The Federal Court of Justice (BGH) has rejected such liability.

A hotel owner demanded that a well-known hotel rating portal cease publication of an untrue factual assertion which the hotel owner considered damaging to business. In this rating portal, under the heading "For €37.50 per night per person in a double room there were bed bugs" a review of the claimant's hotel appeared.

In this hotel rating portal, users can rate hotels on a scale between one (very poor) and six (very good). From this, certain average values and a recommendation rate are then calculated. Before individual user reviews are included in the portal, they are processed by word filter software which is intended to identify, amongst other things, insults, abusive criticism and self-assessments by hotel owners. Reviews that do not trigger the filter are automatically published. Reviews that are filtered are reviewed by employees of the hotel rating portal and then manually released if appropriate.

Following a cease-and-desist letter from the hotel owner, the hotel rating portal did remove the objected-to review, but refused to provide the also-demanded declaration of submission under penalty.

Court decision

After the hotel owner's action had already been unsuccessful in the lower instances, the BGH also rejected the appeal against the court of appeal's judgment by judgment dated 19 March 2015 – I ZR 94/13 (Press release) and decided that the operator of a hotel rating portal is not liable for injunctive relief against untrue factual assertions of a user on its portal on the grounds of breach of competition law provisions (in particular § 4 Nr. 8 UWG or § 3 Abs. 1 UWG).

The objected-to user review is – according to the BGH – not an independent "assertion" of the rating portal, because it has not made this its own in terms of content, either through review of the assessments or through statistical evaluation.

According to the BGH, the rating portal also has not "disseminated" the assertion. The liability of a service provider within the meaning of the Telemediengesetz is limited if, as in this case, it assumes a neutral role. For untrue factual assertions of a third party, liability only exists if the service provider has breached specific due diligence obligations, the intensity of which is determined according to the circumstances of the individual case. These include the reasonableness of the due diligence obligations and the recognisability of the breach of rights. However, a service provider may not be imposed with a due diligence obligation that would jeopardise the economic viability of its business model or unreasonably impede its activities.

The BGH rejected any breach of such specific due diligence obligations. A substantive prior review of user reviews was not reasonable. In the dispute at hand, there were also no indications that the defendant operates a highly dangerous business model that would trigger special due diligence obligations.

Conclusion

As a result of a breach of due diligence obligations, liability for injunctive relief would only have existed if the operator of the internet portal had obtained knowledge of a clear breach of rights and nevertheless had not removed it. However, this was not the case here.