Online rating portals: BGH strengthens legal position of rated companies

02 September 2022

Companies are increasingly confronted with negative comments on rating portals, where it is unclear whether the rating is really based on real customer experiences. This applies in particular to anonymous ratings that do not allow any conclusions to be drawn about the actual use of the product or service by the reviewers. The German Federal Supreme Court (“BGH”) recently had to deal with anonymous negative ratings on a hotel platform. With its decision, the court has substantially strengthened the rights of companies affected by such negative ratings (BGH, judgment of 9 August 2022, file number: VI ZR 1244/20). According to the court, a hotel can immediately reprimand an anonymous rating to the portal. If the portal does not clarify the prior stay or visit of the reviewer positively, the (negative) review must be permanently removed.

The case concerns reviews of a holiday park that had been posted on an online travel portal. More than 10 anonymous posts or posts with only a first name made the holiday park appear in a dubious light. It was stated that the facility exuded the charm of the 1960s/70s and that the service was poor. The operator of the holiday park was unable to verify the authenticity of the statements due to the anonymity and general nature of the information. Was the information based on the experiences and impressions of a “real” guest or were they due to an order from a competitor?

Paid negative comments from competitors?

It is obvious that such negative ratings can have a massive impact on a company’s economic success. The operator of the holiday park therefore complained about the ratings and asked the portal operator to verify the identities of the reviewers or remove the content. When this did not happen, court proceedings were initiated. In its decision, the BGH clarified that the rated company can reprimand anonymous information to a rating portal. This results from corporate moral rights and should not only apply if the details of the anonymous evaluation do not allow any conclusions to be drawn about a visit to the hotel complex. Rather, the simple complaint is sufficient even if the entry provides information for an actual stay. The BGH hereby developed its prior jurisdiction further (judgement of 1 March 2016, file number: VI ZR 34/15).

Obligation to check the rating portal after complaint

The judges justified this with the fact that evaluated company could not check the validity of the comment in this case either. The prior visit cannot be determined with certainty. This can only be different if the information in the comment is so specific that the identity of the guest can be verified despite the anonymization. If a rating is rightly criticized on this basis, the rating portal must check the validity of the evaluation. The BGH did not provide any information on how and to what extent this examination had to be carried out. Since the rating portal had not carried out any verification, there was no reason to do so. The question now is what follows from the judgment for the companies affected by such assessments.

Consequence: No anonymous negative reviews?

Following this decision, it should be easier for companies in the future to force rating portals to check the validity of the rating in the case of anonymous negative ratings. A simple complaint against the portal due to the anonymization without further justification is sufficient. Stricter requirements may only apply if the details of the evaluation indicate that the product or service has been used. The future will tell whether this will ultimately lead to rating portals checking the identity of the reviewers more thoroughly or making higher demands on the submissions of reviewers and their comments.