Restaurant review in restaurant guide contrary to competition law?

The Higher Regional Court (OLG) of Cologne had to decide whether a restaurant critic may publish a negative review of a restaurant tested by them in the context of a restaurant guide, or whether this would give rise to a cease-and-desist claim by the restaurant operator.

A publisher published a very poor review of a gourmet restaurant in a restaurant guide. The report was the result of a single visit by a test diner commissioned by the publisher. The restaurant operator objected to this negative review by means of a preliminary injunction and demanded immediate cessation.

Court's decision
The OLG Köln decided with Beschluss vom 30.05.2011 – Az. 15 U 194/10 that a negative restaurant review in a restaurant guide would be inadmissible if it was based only on the visit of a single test diner and the assessment could entail considerable disadvantages for the restaurant operator.

However, negative criticism is not fundamentally inadmissible. In view of the broad scope generally to be accorded to the critic, the mere fact that the restaurant review in dispute is disparaging and impairs the restaurant operator's economic interests cannot alone justify its inadmissibility from the perspective of freedom of expression. A business establishment must generally be prepared to face substantiated criticism of its performance.

For the publisher, however, it was readily apparent that the published negative assessment would entail considerable disadvantages that could extend to the point of endangering the economic existence of the business. In view of the potentially negative repercussions arising from publication, it was therefore necessary that the review in question be not merely the result of a single visit by one test person. The review here failed to meet precisely these requirements, as it was the result of a single visit by an editor assigned to this task by the publisher to the gourmet restaurant.

Conclusion

Within the scope of freedom of expression, restaurants must accept legitimate criticism. However, this must be substantiated on account of the potential jeopardy to the respective business, and may not be based on a single review only.