In its ruling of April 4, 2017 (case reference: VI ZR 123/16), the BGH decided that the portal operator of a review portal can adopt user reviews as its own and be liable for them.
This applies in particular if the portal operator reviews a false factual claim in response to a complaint from the person concerned and inadequately amends it.
Incorrect statement in rating portal
A clinic for ENT and laser surgery had filed a lawsuit.
The lawsuit was directed against the operator of an online review portal.
A customer of the clinic had left a bad review there after a failed nasal septum operation, which led to sepsis.
In his user review, the patient claimed that a septic complication had occurred “during” a standard procedure and that the clinic had been overwhelmed by the situation.
In addition, the sepsis almost led to his death.
Clinic claims portal operator for deletion of the statement
After the clinic asked the operator of the review portal to delete the user review, the operator made changes to the review without consulting the patient.
He added an addendum to the review and deleted part of a sentence.
Amendment by the operator of the rating portal leads to the statement being adopted as their own
After the Frankfurt am Main Regional Court granted the injunction and the appeal to the Higher Regional Court was unsuccessful, the BGH has now dismissed the appeal.
The VI. Civil Senate, which is responsible for general personality rights, found that the operator of the review portal made the contested statement his own.
As a result, it was also directly and comprehensively liable as a disturber.
The operator reviewed the content of the patient’s review in response to a complaint from the clinic and had a significant influence on it.
Without consulting the patient, the operator itself decided which comments to change or remove and which to retain.
Primacy of the general right of personality
According to the BGH, the operator assumed responsibility for the content of the challenged statement with this autonomous decision and change.
The statement concerned untrue factual claims and expressions of opinion based on untrue facts.
Therefore, the portal operator’s right to express an opinion had to take second place to the clinic’s general right to privacy.