Concept and significance of review forums
Ein Review forum is an internet-based platform where users can publicly rate and comment on products, services, companies, institutions, or individuals. Review forums are among the interactive communication platforms and primarily serve as a means of exchanging experiences as well as orientation for other consumers or interested parties. The legal assessment of review forums is of considerable importance due to their digital reach and the relevance for personal as well as commercial rights.
Legal classification and fundamental questions
Platform operators and liability
According to statutory provisions, operators of review forums are generally not directly liable for content on their websites as long as they are unaware of an unlawful review. The central provision for this is the Telemedia Act (TMG), particularly § 10 TMG. According to this, service providers are only liable for third-party content once they become aware of its unlawfulness and do not act immediately to remove the content or block access.
User contributions and freedom of expression
Posts written by users in review forums are often an expression of the constitutionally anchored freedom of expression pursuant to Article 5(1) of the Basic Law (GG). These expressions of opinion generally enjoy comprehensive protection, but their limits are reached, especially where the rights of third parties, such as the general right of personality according to Article 2(1) GG in conjunction with Article 1(1) GG, are affected, or other legal interests, such as the corporate right of personality as well as the right to the established and practiced business (§ 823(1) German Civil Code – BGB), are affected.
Admissibility and limits of reviews
Factually justified criticism
The admissibility of reviews depends on whether the statement is to be classified as a fact or as an opinion (value judgment). While true factual claims are generally permissible, untrue factual claims can be prohibited. Opinions are only inadmissible if they cross the line into defamatory criticism, insult (§ 185 Criminal Code – StGB), defamation (§ 186 StGB), or slander (§ 187 StGB).
Defamatory criticism
Defamatory criticism exists when the review no longer serves to discuss the matter but solely aims to denigrate the reviewed company or person. In these cases, the affected party may have a right to injunctive relief or deletion.
Fake reviews
Review forums can become targets of so-called Fake reviews fake reviews. Act Against Unfair Competition (UWG) and may entitle competitors, affected parties, or consumer protection associations to send warnings, or assert claims for injunctive relief, removal, or damages.
Liability in review forums
Liability of the platform operator
Operators of review forums are only liable for injunctive relief and, where applicable, for damages if they have received a specific notification of the infringement and fail to remove or block the unlawful content. The role as intermediary (so-called “neutral host provider”) does not necessarily eliminate all liability risks.
Liability of users
Users who post unlawful content are personally and directly liable for any violations of personal or corporate rights as well as for breaches of competition law. This can have both civil and criminal consequences.
Claims and legal consequences
Right to injunctive relief and removal
Persons affected by inadmissible reviews can assert a claim for injunctive relief and removal (i.e. deletion of the post) pursuant to §§ 1004, 823 BGB in conjunction with the general right of personality or the corporate right of personality.
Counterstatement and correction
In certain cases, there is a right to a counterstatement (§ 56 Interstate Broadcasting Treaty – RStV analogously) as well as a right to correction, especially in cases of untrue factual claims.
Damages
If damage is caused by reviews, the affected party may assert claims for damages against owners or platform operators under certain conditions, provided that not only negligence but also fault can be imputed to them.
Data protection and data protection obligations
The processing of personal data in review forums is subject to the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG). Operators are obliged to inform users transparently about the data processing and to take suitable technical and organizational measures to protect data. In the case of unlawful reviews, affected parties can request that personal data (e.g. name in the case of untrue factual claims) be removed.
Reviews of companies and individuals
Company reviews
Companies can be reviewed in review forums as long as no untrue or defamatory statements are made. According to the case law of the Federal Court of Justice, such forums are generally permissible (“Jameda” rulings), as consumer interests usually outweigh, provided the reviews are factual and truthful.
Review of private individuals
When reviewing private individuals, the general right of personality must be considered more strictly. Even minor infringements may justify a right to deletion, especially if the connection to private life predominates.
Deletion procedures and the involvement of operators
Duties of review upon complaints
After a substantive complaint about a review, the operator is obliged to immediately conduct an independent review. This procedure is based on the requirements of national courts (see BGH, judgment of March 1, 2016 – VI ZR 34/15).
“Notice-and-take-down” procedure
The so-called notice-and-take-down procedure requires that review platforms promptly review a reported potential violation of personal rights and remove the review if it is found to be unlawful.
Intellectual property rights and competition law
Protection against unfair competition
According to the UWG, review forums are obliged to counteract misleading or unlawful reviews. This particularly concerns so-called astroturfing, where companies or their agents fake reviews to influence competition.
Trademark law aspects
Trademark law is also applicable: reviews may not give the impression that they originate from the affected company itself or from an official source, if that is not the case (§ 14 MarkenG).
Procedural specifics
Interim legal protection
In the event of serious legal infringements, an application for a preliminary injunction can be filed with the competent civil court to obtain prompt removal of a review.
International jurisdiction
As review forums are often operated across borders, questions of international jurisdiction and applicable law arise. The Brussels Ia Regulation and the Rome II Regulation regulate the relevant international private law parameters.
Conclusion
Review forums are a central element of digital communication and enable transparency and exchange. They have high social, economic, and legal significance. Legal oversight of review forums operates in the tension between freedom of expression and protection of personality. Both operators and users must comply with numerous statutory requirements, particularly concerning personality rights, competition law, and data protection. In case of dispute, there are different legal instruments and claims, whose enforcement depends on the specific circumstances of the individual case.
Frequently asked questions
Is the operator of a review forum liable for unlawful content?
The operator of a review forum can, in principle, be held liable for unlawful content posted by third parties. According to § 10 Telemedia Act (TMG), there is a liability privilege for host providers, meaning the operator is not responsible for third-party information as long as she has no knowledge of the unlawful act or content and removes it immediately after becoming aware. However, this assumes that the operator acts immediately upon appropriate notification, such as by a warning or a complaint from the affected party, and blocks or removes the contested post. If a notification is disregarded or deletion is not prompt, the operator can be held liable for injunctive relief and, in some cases, for damages. There is also a duty to check in case of repeatedly conspicuous users or obvious unlawfulness of content.
What claims do those reviewed have to deletion of a review in the forum?
Individuals or companies who consider a review to be unlawful have a right to removal if the review violates the general right of personality, the corporate right of personality, or other rights such as the right to the established and practiced business. In the case of factual claims, sufficient basis (provability) must exist; untrue factual claims must be deleted. Regarding expressions of opinion, a balancing of interests takes place, whereby gross insults, defamatory criticism, or formal insults are considered inadmissible and must also be deleted. Such claims are regularly based on § 1004(1) BGB analogously in conjunction with §§ 823(1), 824 BGB or the relevant special personality protection laws. Actual enforcement is usually by way of warning to the operator or, judicially, by injunction.
Must a review forum allow anonymous reviews?
The legal admissibility of anonymous reviews is disputed, but generally permitted as long as publication does not make legal action by the reviewed party excessively difficult. Review forums may publish reviews even without a real-name requirement. However, the operator is obliged to identify the user behind the review in the event of a dispute if the review is unlawful and the affected party has a right to disclosure under §§ 14, 15 TMG or under the principles of host liability. Disclosure of data generally requires a court order or proof of a valid right to information.
What duties to review does the forum operator have upon complaints about a review?
Once the operator of a review forum becomes aware of a potential legal violation through a review (e.g. via a complaint or warning), she is legally obliged to carefully review the matter. This includes comparing the content of the review with the alleged legal violations, if necessary requesting a statement from the reviewer, and legally assessing the review in terms of freedom of expression and personality rights. If the violation is obvious, the operator must remove the review immediately; otherwise, further examination or balancing may be required. Failure to conduct such a review risks liability for injunctive relief or even damages.
How do claims for injunctive relief affect the further publication of similar reviews?
If a claim for injunctive relief against the operator of a review forum is successfully asserted regarding a specific review, her obligation usually expands: she must proactively prevent comparable unlawful reviews of the same content or with a similar core in the future (so-called duty to check and supervise for “core-identical” infringements). If she does not fulfil this obligation and further similar reviews are published, she is again liable and can be sanctioned (§ 890 ZPO). The operator must therefore implement appropriate filter mechanisms and internal review procedures after an injunction has been issued.
What data protection requirements apply to review forums?
Operators of review forums must observe the provisions of the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG). This applies in particular to the processing of personal data of both reviewers (e.g. email, IP address) and those being reviewed. There is an information obligation under Art. 13 GDPR regarding data processing; users must also be informed about their rights (e.g. access, deletion). Sensitive data and special categories of personal data may only be processed under strict conditions. In the event of data-related complaints, the operator must respond immediately and, if applicable, remove unlawfully published or stored personal data.
Are legal actions against negative reviews in the forum successful?
The prospects of success of legal action depend largely on whether the challenged review is unlawful. Courts check whether the review contains an inadmissible factual assertion (e.g. untrue or defamatory) or an opinion, and balance the relevant interests. There are good prospects of success for affected parties against insulting, credit-damaging, or demonstrably untrue reviews. Reviewed parties can regularly obtain quick judicial decisions by way of preliminary injunction. In the case of permissible expressions of opinion that do not cross the line into defamatory criticism, a lawsuit is often unsuccessful. Judicial decisions require comprehensive findings and often a taking of evidence.
