No disclosure obligation against rating portal

The question of whether the operator of a rating portal on the internet must provide information regarding the name and address of the author of a rating in the event of a violation of the right of personality of the rated person has occupied the courts of first and second instance for some time now. Now the Federal Court of Justice (BGH) has had the opportunity to comment on this question.

In the decided case, it concerns the internet rating portal Sanego, which enables the rating of doctors. There, the suing doctor discovered a rating in November 2011 that contained various false statements. Further ratings followed in the same style. The portal operator deleted these at the request of the doctor, but did not provide the requested information concerning the person who made the rating. Knowledge of this is a prerequisite for direct action against the person who made the rating and the only way to assert claims for damages and reimbursement of costs. The portal operator is namely regularly only obliged to remove unlawful entries and comes away from the matter unscathed after the work is done. The courts of first and second instance (LG Stuttgart 11 O 172/12 and OLG Stuttgart 4 U 28/13) affirmed the obligation of the portal operator to provide the information. Against this, the portal operator appealed to the Federal Court of Justice (BGH).

The court's decision

The Federal Court of Justice (BGH) overturned the decisions of the courts of first and second instance by judgment of 01.07.2014 (Az. VI ZR 345/13). In the court's view, the operator of an internet portal is not permitted, without a corresponding statutory authorisation, to transmit personal data of the user to the person affected – unless the latter consents (which will rarely be the case). Data collected for the provision of telemedia with a specific purpose could be used for other purposes only if the law permits this or the user consents to it, which was not the case here. A statutory provision that permits the disclosure of such data has deliberately not been created by the legislator to date.

Conclusion

Following this decision, for the time being it remains the case that ratings on the internet are largely possible anonymously. The person affected thus generally has only the option of taking action against the portal operator for injunction or deletion. As regards any damage, however, the person affected bears the loss. An exception exists in the case of criminal acts. In this case, the portal operator may and must provide the investigative authorities with information regarding master data, usage data and billing data which the person affected can then ascertain by way of inspection of the case file. The route thus leads via a criminal complaint which the person affected should, where necessary, file in order to indirectly obtain the data of the person who made the rating. This, however, presupposes that the rating was not made under a pseudonym, which the operator must enable for legal reasons.