In its ruling of March 19, 2015 (I ZR 94/13 – Hotel review portal), the Federal Court of Justice ruled that the operator of a review portal cannot be held liable for omitting an allegedly untrue factual claim made by a user if it has not “appropriated” the review.
BGH: Liability of “Holidaycheck” for negative hotel reviews
The defendant operates the hotel rating portal “Holidaycheck”. On this portal, users can rate hotels they have visited on a scale of 1 to 6, from which the defendant calculates average values and a recommendation rate. Before the reviews are published, they go through an automatic word filter that is intended to filter out insults, abusive criticism and self-assessments made by hotel operators themselves. Unobtrusive reviews are published immediately, while conspicuous reviews are checked manually by employees of the defendant and approved if necessary.
The plaintiff is the operator of a hotel in Berlin. After a guest visited her hotel, he wrote a review under the heading “For 37.50 per night and head in a double room there were bedbugs”, in which he complained about bedbugs in the beds, among other things. Furthermore, the room was equipped with a “TV set from 91”, which was also deliberately poorly fixed, as €50 had to be paid in the event of damage. The plaintiff considered this review to be an untrue, business-damaging statement of fact and issued a warning to the defendant.
The latter then removed the disputed rating, but did not issue the declaration of discontinuance demanded by the plaintiff.
Holidaycheck has not “appropriated” the rating
The BGH ruled that the plaintiff was not entitled to the claim asserted.
The decisive factor was whether the defendant had adopted the guest’s claim as its own. The fact that the defendant wanted to identify itself with the published reviews of third parties was, however, far-fetched according to the content and design of the portal. It had not adopted the content of the user’s review as its own either by means of a preliminary check or by means of statistical analysis and calculation of a recommendation rate, as it had no influence on the content of the reviews. Accordingly, the published review was not an “assertion” of the defendant within the meaning of Section 4 No. 8 UWG.
The defendant also did not “disseminate” the rating within the meaning of Section 4 No. 8 UWG by including it on the portal. This would only be the case if it had been aware of the infringement and had nevertheless not removed it.
Since the defendant, as the operator of the rating portal, has limited itself to providing its service “neutrally” by publishing the data entered by the user by means of technical and automatic processing, its liability is limited in accordance with the relevant Sections 7 para. 2, 10 sentence 1 no. 1 TMG.
No inspection obligation violated
However, the defendant would have been liable if it had breached specific inspection obligations. What these consist of depends on the circumstances of the individual case and cannot be said in advance in general terms. The decisive factor is which measures are reasonable for the operator and whether an infringement is recognizable for him. However, the service provider’s business model must not be “economically jeopardized or its activities disproportionately impeded” by these inspection obligations.
Review of all valuations unreasonable
According to the BGH, the defendant could not reasonably be expected to carry out a complete review of the content of all reviews written. The removal of the review by the defendant was therefore sufficient, so that no unfair commercial act within the meaning of Section 3 para. 1 UWG is given. This is because a claim for injunctive relief only exists if the portal operator becomes aware of the infringement and still does not remove it. However, the defendant complied with this by removing the disputed review in response to the warning.