Munich Regional Court I, judgment of 16.04.2019 – 33 O 6880/18

Right to republication of positive user reviews on doctor review portal

Tenor

I. The action is dismissed.

II. The plaintiff shall bear the costs of the legal dispute.

III. The judgment is provisionally enforceable on the point of costs against security amounting to 110% of the costs to be enforced.

Facts of the case

1

The plaintiff is requesting the defendant to republish positive user reviews on its doctor review portal.

2

The plaintiff is a dentist. His practice specializes in the treatment of craniomandibular dysfunction (CMD), and the plaintiff is visited by CMD patients from all over Germany, and in some cases also from other European and non-European countries. According to his own submission, which is not disputed by the defendant, the vast majority of patients obtain very detailed information about the practice and the plaintiff’s work on the internet in advance. The plaintiff therefore does not benefit from “word-of-mouth advertising” like the vast majority of other dentists, but is economically highly dependent on a positive presentation on the Internet.

3

The defendant operates a widely known internet review portal under the URL www.j….de, which provides the opportunity to publicly submit reviews of visits to doctors, dentists and other healthcare providers. In its public image, the defendant attaches great importance to the quality and authenticity of the reviews published on its internet portal (cf. internet printouts, Annex K 1).

4

The plaintiff is also listed on the defendant’s rating portal. By December 28, 2017, the plaintiff had received a total of 60 reviews and an overall rating of 1.5 on the defendant’s portal (see Internet printouts as of December 28, 2017, Annex K 4). On 15.05.2018, 68 evaluations of the plaintiff’s work were publicly available there (cf. internet printouts as of 15.05.2018, Annex K 2).

5

Until the end of 2018, the plaintiff was a contractual partner of the defendant (“premium customer”) and made use of the “Premium Package Gold” (see service description, Annex K 3). This status allowed the plaintiff to customize his basic profile – even without this contract. In a letter dated 10.01.2018, the plaintiff terminated the “Premium Package Gold” at the end of 2018 (see letter, Annex K 5). In the period from January 11 to January 18, 2018, the defendant deleted ten reviews of the plaintiff’s work from its portal – without notice and without giving the plaintiff the opportunity to comment – which were submitted in favor of the plaintiff and can be seen in Annex A to the application for action number 1 (see screenshots as of January 11, 2018, Annex K 6 a and screenshots as of January 18, 2018, Annex K 6 b). Until the time of the deletion, the reviews had been on the defendant’s review portal for up to two years without objection.

6

In a lawyer’s letter dated February 16, 2018, the plaintiff asked the defendant to republish the ten deleted reviews (see letter, Annex K 7), which the defendant refused to do in an email dated March 1, 2018 (see email, Annex K 8).

7

According to the plaintiff, the deletion of the reviews in dispute had caused his overall rating to drop significantly in the meantime and the defendant had not substantiated why it had deleted these reviews. Insofar as the defendant justifies the fact that at least ten positive reviews were deleted in direct temporal connection with the plaintiff’s termination with a “constantly learning algorithm”, this is not comprehensible because it remains completely open what the algorithm has specifically learned in the previous two years with regard to the reviews in dispute. Moreover, the defendant did not even begin to substantiate this, let alone provide evidence that its algorithm – which is subject to its unrestricted control and for whose operation and results it is fully responsible – fulfills the quality criteria of a reliable test procedure, i.e. has sufficiently high validity (validity), reliability (accuracy) and objectivity. The defendant could also not rely on the fact that the disclosure of the functionality or even the essential criteria of the algorithm was a trade secret and would inevitably lead to circumvention strategies by doctors and/or agencies. This unsubstantiated allegation is disputed. Furthermore, it is disputed that the deletion of positive old reviews by the defendant is preceded by a systematic review process that also takes appropriate account of the special features of older reviews. Overall, as a result of its “review system” – if such a system exists at all – the defendant reveals that it deletes both positive and negative reviews without disclosing or even beginning to describe the criteria for the final decision of the quality management system. The defendant is thus exposed to the well-founded suspicion of arbitrariness.

8

By deleting the ten reviews in dispute without cause, the defendant had breached both a contractual secondary obligation and the plaintiff’s right to his established and exercised business operations. The plaintiff therefore had a claim for republication of the deleted reviews under §§ 280 para. 1, 3, 282, 241 para. 2, 249 para. 1 BGB and § 823 para. 1 BGB:

9

Firstly, the defendant had breached a duty arising from the contractual obligation and was also responsible for this breach of duty. The parties were contractually bound to each other via the “Premium Package Gold”. The contractual relationship would not expire until the end of 2018 when the termination took effect. As with any contractual obligation, mutual duties of consideration and protection (Section 242 in conjunction with Section 241 (2) BGB) also arise from the present contract – in addition to various principal obligations. The most important duty of protection is to behave in such a way that, among other things, the property and other legal interests of the other party are not violated. For the present contractual obligation, it follows that the defendant is prohibited from arbitrarily deleting reviews that have already been submitted, i.e. without verifiable objective reasons. This is because the deletion of a positive rating is just as burdensome for the plaintiff as the posting of a negative rating. Both have an identical negative impact on the overall rating, and by deleting them, the defendant interferes with the rights of the plaintiff, who has a legitimate interest worthy of protection in ensuring that positive ratings given in his favor – which are solely due to his good medical services – are not taken away from him again. If the defendant claims to be able to subsequently check the authenticity of reviews that have already been published, it must in any case take full account of the rights of the plaintiff and provide for a suitable, transparent and non-discriminatory procedure. If it uses an automatic checking algorithm for this purpose, it may not rely on its results, but must exhaust all other sources of information within reasonable limits and carry out a comprehensive weighing of interests before deleting a rating once it has been submitted. The aforementioned obligations are to be seen as analogous to the defendant’s duty to check, which exists if a doctor rated on its portal complains about the illegality of a rating submitted to its detriment. According to the requirements of supreme court case law, if the defendant is confronted with the allegation of a data subject that a post made by a user violates his or her right to privacy and if the complaint is so specific that the violation of the law can be easily affirmed on the basis of the data subject’s allegation, the defendant must determine and evaluate the entire facts of the case, taking into account any statement by the person responsible for the offending post. The defendant had to carry out a comprehensive weighing of interests. The defendant had breached these ancillary contractual obligations in the present case. It is undisputed that the defendant stated that the old reviews at issue had now been classified as “suspicious cases” by its self-learning review algorithm and that “technical anomalies” had emerged in this regard. Significantly, the defendant did not state what this meant. As a result, this also proves to be a mere protective assertion because the reviews at issue were undisputedly published using the defendant’s current review algorithm and had previously been online for a very long time without any objections. The temporal coincidence is more than striking: within a week of the termination of the “Premium Package Gold”, the defendant declared the ten old assessments at issue to be “suspicious cases” in which “technical anomalies” had been identified. At the same time, however, it refuses to provide any further information as to the nature of the “technical anomalies”, why the “technical anomalies” should have appeared in ten different reviews from ten different patients, although these were spread over a period of one year and eight months, and why the “technical anomalies” suddenly appeared or were detected within a few days after such a long period of unobjectionable publication. But even if one wanted to overlook all this, the steps taken by the defendant to eliminate the “technical anomalies” – insofar as it had outlined them to the plaintiff at all – proved to be completely unsuitable. It was obvious that the longer ago the evaluation was made, the more likely it was that the e-mail addresses used for the evaluations at the time and stored with the defendant would no longer function or would no longer be used. However, even if it is still technically possible to contact a patient, reconfirmation is unsuitable because a patient’s inclination to confirm their review diminishes considerably over time. It is even more astonishing that the defendant, according to its own statements, had even carried out a text message confirmation procedure in two cases, but the further publication was nevertheless omitted due to “technical anomalies”. This clearly shows that the confirmation procedure practiced by the defendant (which is in any case completely unsuitable) is ultimately irrelevant, because it is quite obvious that the “technical anomalies” could not be reliably eliminated even if the confirmation procedure chosen by the defendant had been carried out properly. Accordingly, it was obvious that the defendant was merely “hiding” behind the confirmation procedure and the alleged factual reason of the “technical anomalies” and was attempting to evade any external control of its arbitrary actions by claiming that any further explanation would violate trade secrets worthy of protection. The defendant could also not evade its responsibility by merely referring to the results of its checking algorithm as long as this could – as here – produce purely random results that significantly impaired the personal and social reputation of those affected. The defendant is fully responsible for the functioning and the results of the checking algorithm it has programmed and used, at least if – again as here – it has obtained sufficient knowledge that the automated activity of its checking algorithm has led to a result that impairs the rights of the plaintiff. The defendant must subject the results of the checking algorithm to a comprehensive follow-up check, at least in cases of suspicion, and the algorithm cannot replace the necessary balancing of interests. The defendant is also responsible for the breach of duty as long as it does not demonstrate and prove pursuant to Section 280 para. 1 BGB and prove that the opposite is the case. The defendant therefore owes damages instead of performance, §§ 280 para. 1, 3, 282, 241 para. 2 BGB. Pursuant to § 249 para. 1 BGB, the defendant must restore the situation that would have existed if the breach of duty had not been committed. As in rem restitution in this sense, the plaintiff could demand the republication of the deleted reviews in dispute, as this is still possible for the defendant without further ado. As a precautionary measure, it should be noted that the termination of the contract has no influence on the merits of the claim. The asserted breach of contract took place at a time when the contract still existed, which is why the resulting claims, in particular the claim for damages or in rem restitution, continue to exist. The damage was neither compensated for by the discontinuation of the contract nor settled in any other way; the arbitrary deletion of the disputed ratings continues to burden the plaintiff. Furthermore, the post-contractual duties to protect, the breach of which is asserted here, also continue to have a post-contractual effect.

10

And secondly, the defendant’s conduct also constituted unlawful interference with the plaintiff’s right to his established and exercised commercial enterprise under Section 823 para. 1 BGB. The right to an established and practiced business is also available to freelancers such as doctors in private practice, and the deletion of the ten reviews at issue is a business-related interference. This is because the best possible ratings on the defendant’s rating portal are of existential importance for the plaintiff and his practice, due to the high degree of specialization and the associated nationwide patient base. By deleting ten out of 60 reviews in a very short time, the defendant had a noticeable negative impact on both the overall rating and the total number of reviews. The latter is also of considerable importance, because the larger the total number or the basic quantity of reviews, the more trustworthy, reliable and meaningful the overall score formed from them is, since individual reviews are less significant. The defendant’s business-related interference with the right to the plaintiff’s established and exercised business operations was also unlawful. In the plaintiff’s favor, both his property right under Art. 14 para. 1 GG as well as his freedom of occupation under Art. 12 para. 1 GG. In contrast, the defendant could at best invoke its freedom of opinion under Art. 5 para. 1 GG, whereby in any case in the case of the deletion given here without comprehensible and verifiable factual reasons, the interests of the plaintiff in continued publication easily prevail. This could only be assessed differently if it could be established with a probability bordering on certainty that the published reviews had been submitted in an abusive manner. The fact that all of the reviews at issue were published in a regular manner and in compliance with all of the defendant’s requirements and that they remained published for a long time without any objections speaks against this. The defendant therefore also owes damages from this legal point of view, which in turn is owed here as in rem restitution in the form of the republication of the deleted reviews at issue.

11

In addition, it should be noted that the arbitrary deletion of the disputed reviews is also inadmissible as an unfair commercial act within the meaning of Section 3 para. 1 UWG, and that the plaintiff could therefore claim damages in the form of the republication of the disputed reviews under Section 9 sentence 1 UWG. There is an indirect competitive relationship between the plaintiff and the defendant, as the defendant, by deleting the reviews in dispute immediately after the plaintiff terminated the contractual relationship, interfered unfairly with third-party competition between the plaintiff and the other dentists rated on the defendant’s rating portal and promoted this third-party competition in favor of the plaintiff’s competitors by arbitrarily deleting the reviews in dispute. The arbitrary deletion was also unfair because it was misleading within the meaning of § 5 para. 1 sentence 1 UWG.

12

The substantive claim for reimbursement of pre-trial legal fees in the amount of half of a 1.3 business fee from an object value of EUR 25,000.00 also arises from §§ 280 Para. 1, 3, 282, 241 para. 2 BGB and § 823 para. 1 BGB, in each case in conjunction with § Section 249 para. 1 BGB. The claim for interest follows from §§ 291, 288 BGB.

13

The plaintiff therefore requests:

1.

The defendant is ordered to republish the ten user reviews reproduced in Annex A to this judgment, which were deleted by the defendant in the period 11-18.01.2018, on the defendant’s review portal jameda.de and to keep them published there.

2.

The defendant is ordered to reimburse the plaintiff for pre-trial legal fees in the amount of EUR 532.20 plus interest thereon in the amount of 5 percentage points above the respective base interest rate since the pendency of the action.

Appendix A

1st grade 1.2

Evaluation from 19.11.2017, privately insured

“Greetings from Frankfurt to my team from Kiel!

I’ve been undergoing treatment at the CMD Center in Kiel for several years and I don’t just read about it on the website but also occasionally on Jameda. When I came to Kiel I felt really well”

2. grade 1.0

Evaluation from 17.11.2017, privately insured

“A special practice, great staff and a capable doctor!

Everything, actually. A small, tidy and extremely tightly and precisely organized appointment practice. No waiting times, parking in front of the door. No hectic and above all: it works, despite …”

3. grade 1.0

Rating from 2017-08-21, privately insured, age: 30 to 50, (70% helpful with 2 votes)

“If you don’t know what to do, then go to Kiel!

If you’re still thinking about how much it costs and whether it’s too far for you to drive there. Forget it! You’ll go to this doctor when you’ve finished with everything, tried everything and.”

4. grade 1.4

Assessment from 19.08.2017, legally insured, age: 30 to 50

“Finally someone who could help

I come from Franconia and was desperate. Everything that can be said has already been written here. The doctor can do it, the staff are competent. I don’t know what more you can ask for. I …”

5. grade 1.4

Evaluation from 12.01.2017, legally insured

“Simply good

If, like me, you have already driven all over Germany to see one CMD specialist after another, then you can say with a clear conscience that, from the south, you …”

6. grade 1.2

Assessment from 17.12.2016, legally insured, age: 30 to 50

“Here you don’t just get clever diagnoses and glossy brochures …

as I have experienced in other CMD centers. What did I expect? One more CMD center where you have the feeling of being treated to a show. What did I experience in Kiel? Zurra one lies …”

7th grade 1.4

Evaluation from 06.04.2016, privately insured, age: 30 to 50, (100% helpful with voice)

“Small, professional, efficient!

You don’t see that very often these days. A practice in a small space, but so perfectly organized that you could turn it into a course in practice management. I come from the …”

8th grade 1.4

Evaluation from 20.03.2016, privately insured

“Arrived after a long search!

I am one of those people who have been looking for a solution to their problem for a very long time. I’ve tried a lot of things over the years, even though I’m not that old yet. Today I know …”

9th grade 1.6

Evaluation from 16.03.2016, privately insured. Age: 30 to 50, (60% helpful with 1 vote)

“In a nutshell: “I’m impressed!

Others also have a long journey. Perhaps a little more for me. The professionalism I experienced here in just a few days is hard to put into words. Comprehensible explanation to …”

10 Grade 1.4

Assessment from 14.03.2016, privately insured, age: 30 to 50

“Expectations more than fulfilled!

I have already worn 6 splints in the last few years. I can’t even tell you how many physiotherapy sessions I’ve had. How many osteopaths and doctors I know …”

14

The defendant claims:

Dismissal of the action.

15

The defendant argues that it has demonstrably not deleted any of the plaintiff’s reviews in response to his termination of the premium package. It can only make its contribution to greater transparency of services in the healthcare system if the reviews on the portal it operates are valid, i.e. if they reflect an actual treatment contact and are not influenced in any way by the treating doctor. To combat invalid reviews, the defendant employs a quality management team of 20 employees. These employees are supported by the use of a review algorithm. This algorithm continuously checks submitted reviews with regard to certain criteria that have emerged over the years as indications of invalid reviews. A “traffic light system” is used, according to which the algorithm classifies ratings as “red”, “yellow” and “green”. Red means that the algorithm classifies the rating as clearly invalid. In the case of yellow ratings, there is a suspicion that the rating has been manipulated. Green ratings are inconspicuous. The red and yellow ratings are then looked at again by members of the quality management team and a decision is then made on how to proceed with the ratings. As this algorithm is constantly learning, reviews that have already been published could also come under scrutiny again at a later date. The individual criteria according to which the review algorithm works are subject to the defendant’s business secrets. Disclosure of these criteria would inevitably lead to doctors or agencies engaged by doctors adapting their procedures in order to circumvent the review algorithm. The review algorithm naturally checks reviews regardless of whether they are positive or negative for the doctor.

16

It is undisputed that every doctor has the opportunity to complain about a review, whereby it is in the nature of things that doctors only make use of this with regard to negative reviews. In these cases, the defendant must carry out the review process differentiated in the decision of the BGH of March 1, 2016 (case reference: VI ZR 34/15) and request the author of the review to comment specifically on the treatment and – if possible – to submit evidence that makes the treatment contact plausible. If the author does not respond within a reasonable period of time, the defendant must delete the respective review in accordance with the aforementioned case law of the BGH. The above description indisputably creates an initial situation in which only negative reviews are deleted on the defendant’s portal at the instigation of doctors, whereby it should not be denied that doctors have a veritable interest in looking good in the reviews on the defendant’s portal. In this respect, it is undisputed that the defendant has to fight very hard with fake positive reviews of doctors, which the doctors themselves, their employees/relatives or commissioned agencies submit (see article, Annex B 1). However, since positive reviews are indisputably never reviewed by the doctors, the defendant must take its own measures to counteract a complete distortion of the review image in favor of the doctors.

17

If the suspicion that individual reviews have been manipulated is confirmed, the defendant will initiate a review process. Among other things, this initially provides for the SMS verification already described by the plaintiff. Similar to the verification procedure for negative reviews, this is intended to obtain feedback from the author of the review in order to check the validity of the review as a first step. If no feedback is received from the author, the review is deleted, as is the case with negative reviews. If the SMS verification is successful, this does not necessarily mean that the review can remain. Further verification steps could take place after the SMS verification. In this respect, there are also parallels to the verification process for negative reviews. This is because the feedback from the author does not necessarily mean that the review can remain in place. Rather, all factors that speak for or against the validity of the individual assessment must be taken into account. According to these factors, the defendant’s quality management team makes a decision on the validity of an assessment at the end of a review process.

18

With regard to the plaintiff, it should first be clarified that the review algorithm has long classified various reviews submitted in relation to the plaintiff as “yellow”, i.e. suspicious with regard to manipulation. It is undisputed that some of the plaintiff’s positive reviews had already been deleted by the defendant before January 11, 2018 due to a negative review process. The fact that the deletion of the reviews had nothing to do with the termination was also made clear by the fact that the defendant had already submitted the reviews in question for review on December 28, 2017 and initiated the SMS verification, i.e. 14 days before the termination was even issued. In this respect, it is significant that the screenshots submitted as Annex K 4 were taken on 28.12.2017 of all days, because normally the doctor being assessed is not aware of the review procedure being carried out, especially as he should not be involved in the assessment process. In this respect, the plaintiff could only have become aware of an assessment procedure if he was in direct contact with the author of the assessments. This in turn clearly indicates that the plaintiff’s reviews were not created without his influence. It fits into this picture that the plaintiff had undisputedly campaigned vehemently at the beginning of the year for various positive reviews of his alleged patients to be published on the defendant’s portal (cf. letter, Annex B 2). Due to the existing cases of suspicion, SMS verification procedures were carried out with regard to the ten reviews in dispute. With regard to eight of the reviews, these were negative. Parallel to the decision of the BGH of March 1, 2016 (case reference: VI ZR 34/15), it was therefore assumed that these were not valid reviews. The reviews were therefore deleted. With regard to two further reviews, the SMS verification carried out could not have resulted in the reviews remaining valid, as all further attempts to contact the user to confirm validity had failed. The defendant had not been able to verify that the reviews at issue complied with its usage guidelines.

19

The defendant is of the opinion that this is an inadmissible popular action because – if at all – only the authors of the reviews are entitled to claims based on the deletion of the reviews, but not the plaintiff.

20

The deletion of the reviews was also not arbitrary. It should first be made clear once again that it is not the review algorithm that decides whether a review is deleted. Rather, the results of the review algorithm merely support the defendant’s quality management team in deciding how to proceed with individual reviews. The defendant had initiated reviews of the reviews at issue on the basis of existing suspicions. In the interest of the public, the defendant is required to strictly pursue suspected cases of manipulation of reviews. In order to effectively combat these attempts, it is essential that the defendant does not disclose its specific criteria for recognizing fake reviews or manipulations. Otherwise, doctors and, in particular, agencies specializing in the submission of reviews would immediately adapt their practices, making it more difficult, if not impossible, to combat fake reviews. When reviewing suspicious reviews, the defendant follows the guidelines of the BGH, which the BGH has specified for reviews initiated by doctors. In this respect, the BGH clarified in its ruling of March 1, 2016 (case reference: VI ZR 34/15) that reviews must be deleted if the author does not respond to a request for comment on a complaint with regard to a review. The defendant applied the same standard to the SMS check and the subsequent attempts to verify a review.

21

There was no breach of secondary contractual obligations on the part of the defendant. The existing contract related exclusively to the design of the plaintiff’s profile and not to the reviews submitted with regard to the plaintiff. On the contrary, the handling of the ratings had been completely defined out of the contractual relationship by the defendant from the outset. In this respect, there were no duties of protection with regard to the reviews and it should be emphasized once again that the reviews submitted by third parties were neither the property of the plaintiff nor any other legal asset assigned to him. Rather, it was an expression of opinion made by a third party in relation to the plaintiff. Only this third party could be entitled to any claims at all with regard to the evaluation.

22

There was no interference with the plaintiff’s established and exercised business operations because the reviews were not attributable to the plaintiff’s business operations. The deletion of reviews is also not a business-related interference, as the deletion of the reviews is neither directed against the business organization nor against the plaintiff’s entrepreneurial freedom of decision. In addition, the plaintiff’s reviews were unlawful because the public expects, when reading reviews from other consumers, that these reviews have been submitted freely and uninfluenced by the person or company being reviewed. This could not be the case if the plaintiff controlled the submission of reviews by its patients down to the smallest detail. The influencing of reviews constitutes an anti-competitive act pursuant to Sections 3 para. 1, 5 para. 1 sentence 1, sentence 2 no. 1 UWG. And if the plaintiff ensures that his patients publish positive reviews about him on the defendant’s review portal, these reviews are legally advertising by the plaintiff. Since the reviews were not labeled as such, the reviews constitute a violation of Section 6 para. 1 No. 1 TMG was justified. In addition, the creation of positive reviews constitutes a breach of the prohibition of unprofessional advertising pursuant to Section 27 para. 3 of the model professional code for doctors working in Germany. The plaintiff could not claim that obviously unlawful reviews were (re)published on his profile.

23

With regard to the asserted competition law claims, it should be noted that in the present case it has already not been specifically submitted to what extent there is a competitive relationship between the plaintiff and the defendant. Moreover, pursuant to § 2 para. 1 No. 1 UWG, an objective connection between the defendant’s conduct (in this case the deletion of a specific review) and the promotion of the sale of goods and services would be required. This objective connection does not exist in the case of the challenged review. The defendant operates its portal with the aim of ensuring transparency in the medical and healthcare sector. However, the defendant had no commercial interest of its own in the specific individual review. Neither the dissemination nor the deletion of a review was carried out to promote the sale of goods and services of the defendant or a third party. In this respect, the deletions at issue here are also not commercial acts within the meaning of the UWG, so that the scope of application of the UWG is therefore not opened.

24

On 05.04.2019, the court received an undelivered pleading from the plaintiff’s representative dated 04.04.2019.

25

For further details of the parties’ submissions, reference is made to the mutual written submissions including annexes and the minutes of the hearing dated 20.09.2018 (p. 70/73 of the file) and 12.03.2019 (p. 91/94 of the file).

Reasons for the decision

26

A. The action is admissible, in particular there is no inadmissible popular action, because in the case in dispute the plaintiff does not arbitrarily make himself the trustee of the affairs of others, but claims a right – alleged – as his own (see Musielak/Voit/Weth, ZPO, 16th edition, § 51, paragraphs 14 and 16).

27

B. The action is not well-founded.

28

I. The claim for republication of the ten user reviews shown in Appendix A asserted in the claim no. 1 is not based on §§ 280 para. 1, 3, 282, 241 para. 2, 249 para. 1 BGB. This is because there was a contractual obligation between the parties within the meaning of Section 280 Para. 1 BGB with corresponding principal and ancillary obligations as well as the duties of conduct specifically addressed in Section 241 Para. 2 BGB specifically addressed duties of conduct. However, the subject matter of this contract was expressly only the design of the plaintiff’s profile on the defendant’s review portal, but not the reviews submitted by third parties with regard to the plaintiff (see service description, Annex K 3). According to the – in this respect undisputed – submission on pp. 13 to 15 of the statement of defense (pp. 37/39 of the file), the defendant also unmistakably points this out to its premium customers by clearly informing them before the conclusion of the contract, for example by stating “Please note: A premium package has no influence on your ratings or on the position of your profile in the j… list of doctors”, that booking a premium package has no effect on the handling of the ratings. The handling of third-party reviews was therefore explicitly excluded from the “Premium Package Gold” contractual relationship, taking into account the neutrality of the review portal sought by the defendant. Due to the fact that it is essential for the defendant according to the content of the contract and is based on objectively understandable considerations, this circumstance must be sufficiently taken into account when determining the scope and extent of the statutory duties to protect. As a consequence, in the present constellation, this circumstance cannot be the subject of the duties within the meaning of § 241 para. 2 BGB.

29

II. Nor does the plaintiff have a claim to the republication of the user reviews in dispute under §§ 823 para. 1, 249 para. 1 BGB.

30

1. the right to an established and exercised commercial enterprise is recognized in case law as another right within the meaning of § 823 para. 1 BGB is recognized. It is an open catch-all provision that is intended to close an otherwise existing gap. The prerequisite is a business-related interference with the protected business area. However, the content and limits of the protection, including the unlawfulness of the encroachment, arise, in accordance with its nature as an open fact, only from a balancing of interests and goods with the specific conflicting spheres of interest in the individual case (established case law, see for example Palandt/Sprau, BGB, 78th edition, Section 823 para. 133; BGH NJW 1983, 812; BGH NJW 1998, 2141).

31

2. the protection of the business owner against interference, which is also based on Article 12 of the Basic Law, is intended to ensure the undisturbed lawful operation and development of a functioning business in economic life. It covers everything that enables the business as a whole to develop and operate in the economy and thus constitutes the economic value of the business as an existing unit, i.e. not only the existence of the business, but also, for example, individual forms of appearance, business ideas and circles of activity, customer base and business relationships, know-how and goodwill. In the event of direct interference with their professional activities, members of the liberal professions who do not actually carry out a trade, such as doctors and dentists, are also protected (see Palandt/Sprau, BGB, 78th edition, Section 823 para. 134).

32

3. however, even if the right to the established and exercised commercial enterprise in principle protects everything that serves the entrepreneurial activity and development in economic life, in order to limit the claim, the interference must be related to the business, which must be directed objectively against the business organism or the entrepreneurial freedom of decision; furthermore, a risk of damage is required that goes beyond a mere nuisance or socially customary hindrance and is capable of impairing the business in a sensitive manner (cf. BGH NJW 1998, 2141; BGH NJW 1985, 1620).

33

4. on the basis of these standards, the user reviews in dispute, which were submitted in favor of the plaintiff, are in principle also covered by the protection of the plaintiff’s right to the established and exercised commercial enterprise, and the deletion of these ten reviews by the defendant also constitutes an interference with this right of the plaintiff. However, in the absence of a business-related and unlawful nature of this interference and in the absence of a relevant risk of damage, the plaintiff has no claim against the defendant for republication of these reviews as damages in kind.

34

In detail:

35

a) The operational relevance required for a claim for damages under Section 823 para. 1 BGB is not given in the case in dispute. The fact that the deletion of the ratings was objectively directed against the plaintiff’s business organization and did not merely affect it reflexively was something that the plaintiff was able to prove for the objective facts of § 823 para. 1 BGB (see Palandt/Sprau, BGB, 78th edition, § 823 para. 133 with reference to § 823 para. 80). The undisputed temporal connection between the termination of the “Premium Package Gold” by the plaintiff and the deletion of the reviews by the defendant alone is not sufficient to prove this, because according to the undisputed factual submission of the defendant on p. 7 of the plaintiff’s response (p. 31), some of the plaintiff’s positive reviews were already deleted before January 11, 2018.2018, some of the plaintiff’s positive reviews had already been deleted by the defendant due to a negative review process, and because the plaintiff himself also stated on p. 5 of the reply (p. 52) that he had suspected since fall 2017 that the defendant occasionally changed or deleted reviews without notifying him of this. Any initial impression that the deletion of the reviews could be a reaction to the plaintiff’s contract termination is thereby eliminated; however, further reliable evidence that the deletion of the reviews was not exclusively intended to safeguard quality, but rather to sanction the plaintiff, has neither been presented by the plaintiff nor is it otherwise apparent.

36

b) In addition, it cannot be assumed in the case in dispute that the defendant’s interference with the plaintiff’s established and exercised commercial operations is unlawful.

37

aa) According to the principles established in the decision BGH GRUR 2016, 855 – www.j….de for the case of the deletion of a negative review sought by a doctor, the plaintiff doctor must first give sufficiently specific notice of the alleged infringement (paras. 24 and 25). The sufficiently specific complaint of an alleged violation of the law then triggers a duty of examination on the part of the defendant (para. 37), which is subject to strict requirements (paras. 39 to 42), i.e. the defendant must send the complaint of the doctor concerned to the reviewer and encourage him to make a qualified statement including the submission of any documents (para. 43). The burden of presentation and proof for the incorrectness of the assessment is therefore on the plaintiff doctor (para. 46), but the defendant has a secondary burden of presentation (para. 47).

38

bb) This examination scheme developed by the supreme court for the case of a desired deletion of negative reviews is to be transferred accordingly to the present constellation, in which the plaintiff demands the republication of positive reviews. Accordingly, it would first have been incumbent on the plaintiff to provide specific, albeit possibly anonymized, information on the respective treatment contact and the validity of each individual review. In this context, the plaintiff cannot – as was the case at the hearing – claim that it is not possible for him to provide more detailed information on this. This is because the assessments submitted – in excerpts – in Annex A contain a number of clues such as the time of assessment, the insurance status, in some cases also the place of residence, an approximate age or information on the medical history, on the basis of which the plaintiff could have determined or at least narrowed down the person making the assessment. The plaintiff would also not be prevented from reviewing his own patient file for reasons of data protection law, especially since, according to his letter submitted as Annex B 2, he documents in consultation with his patients when which patient submitted a rating on the defendant’s rating portal. The plaintiff has not satisfied these supreme court requirements in the case in dispute, so that the defendant has no secondary burden of proof.

39

However, even if one wanted to see this differently, the defendant would in any case have satisfied its secondary burden of proof in the present case. This is because the defendant has explained in detail how and why it came to the conclusion that it could not guarantee the validity of the reviews at issue. The defendant stated that it uses an automatic, self-learning review algorithm to ensure the quality and validity of the reviews posted on its review portal, the suspicious reports of which are checked again by its quality management team consisting of 20 employees. The defendant did not have to disclose further details of its review system and in particular the functioning of the review algorithm it uses because the secondary burden of presentation of a party only exists within the scope of what is reasonable, which means that trade secrets do not have to be disclosed in principle (see BGH GRUR 2012, 626 – CONVERSE I, para. 28). In addition, the defendant stated that a subsequent SMS verification carried out to check the validity of the reviews was negative with regard to eight of the reviews at issue, which is why these had to be deleted in view of the decision BGH GRUR 2016, 855 – www.j….de. With regard to the two other reviews, all further attempts to contact the user then failed, which is why these reviews were ultimately also deleted because their validity could not be confirmed. The plaintiff, who bears the burden of proof for the validity of the reviews, was not able to refute this substantiated factual submission by the defendant, nor was he able to prove in any other way that the reviews in question – only some of which are so-called old reviews – are reliable and therefore their deletion is unlawful.

40

cc) Finally, the fact that the defendant did not hear the plaintiff before deleting the reviews in question does not mean that the intervention was unlawful. This is because – as the defendant rightly points out – it is up to the author of a review to verify it vis-à-vis the defendant, and not the doctor who has been reviewed, who is not responsible for the content of a properly submitted review.

41

c) Furthermore, the intensity of the interference in the case in dispute is so low that any relevant damage to the plaintiff is excluded. After the deletion of the ten reviews classified by the defendant as invalid, 51 reviews of the plaintiff’s profile were still retrievable according to the internet printouts of 18.01.2018 submitted as Annex K 6 b, and the plaintiff’s overall score did not drop “significantly” by the deletion – contrary to what the plaintiff claims – but only insignificantly by 0.1, namely from 1.5 on 11.01.2018 (cf. Screenshots as at: 11.01.2018, Annex K 6 a) to 1.6 on 18.01.2018 (cf. Screenshots as at: 18.01.2018, Annex K 6 b). The plaintiff has not claimed that the deleted reviews contained any particular content that would have been of essential importance to the plaintiff, nor can this be inferred from the reviews – only excerpts of which were submitted.

42

d) This result is not contradicted by the fact that, particularly in cases of the present kind, where an “open” element of liability such as the protection of the established and practiced commercial enterprise pursuant to Section 823 para. 1 BGB, a case-by-case balancing of interests is required, taking into account the particularities of the facts to be assessed and the significance of the opposing fundamental rights of the parties involved (see BGH NJW 1998, 2141), namely in the case in dispute the right to the free exercise of a profession within the meaning of Art. 12 para. 1 GG and the guarantee of property pursuant to Art. 14 para. 1 GG on the part of the plaintiff and the freedom of opinion and the media within the meaning of Art. 5 para. 1 sentence 1 GG as well as the freedom to exercise a profession pursuant to Art. 12 para. 1 GG on the part of the defendant, which as a legal entity under private law can also invoke the corresponding protection of fundamental rights.

43

aa) The aforementioned fundamental rights are not limited to the function of the citizen’s right of defense against the state, but also have an indirect third-party effect as fundamental rights and thereby also influence the value system of private law (see also BGH GRUR 2014, 1228 – Ärztebewertung II, paras. 26-28 and 32 et seq.). The conflicting fundamental rights positions of the plaintiff on the one hand and the defendant on the other must therefore be considered in their interaction and balanced in accordance with the principle of practical concordance in such a way that they are as effective as possible for all parties involved. Accordingly, the proportionality test and balancing to be carried out here cannot be undertaken solely from the perspective of an individual fundamental right, but must refer to the balance between equal holders of fundamental rights (see BVerfG GRUR 2016, 690 – Metall auf Metall).

44

bb) The necessary balancing of interests leads to the conclusion that the interests of the plaintiff in the republication of certain reviews do not outweigh the interests of the defendant in the proper operation of its portal in the case in dispute. The Chamber does not fail to recognize that positive reviews on the defendant’s internet portal are of great importance for doctors – and especially for specialized doctors with a certain specialization and a correspondingly wide catchment area – because the defendant’s review portal has a considerable broad impact and the reviews posted on it have an impact on the social and professional reputation of a doctor and influence the choice of doctor by persons in need of treatment, which has a direct impact on the doctor’s chances in competition with other doctors. However, because the risks of abuse and their undesirable consequences for the transparency of services on the defendant’s review portal should not be underestimated (see also BGH GRUR 2016, 855 – www.j….de, para. 40), the defendant must be allowed to check the validity of reviews either in cases of suspicion or on a random basis in order to ensure the proper operation of its portal. The general public has an extremely high interest in such proper operation, as the public has a considerable interest in information about medical services, and falsified reviews can have serious negative consequences for those seeking medical advice. It is therefore permissible for the defendant to delete reviews whose validity has not been established, provided that the deletion is not arbitrary, as a sanction for the termination of the contract of the rated doctor or for the purpose of unjustifiably favoring his competitors, for which in the case in question – as already explained under B.II.4.a) – there are no viable indications.

45

cc) A violation of his general right of personality under Art. 1 para. 1, Art. 2 para. 1 GG, and such a violation is not apparent because the plaintiff is not degraded by the lack of deleted ratings.

46

III. The plaintiff’s claim for republication of the ten reviews in dispute is also not based on §§ 3 para. 1, 5 para. 1 sentence 1 and 9 sentence 1 UWG.

47

1. because there is no concrete competitive relationship between the parties, the scope of application of the UWG is not opened.

48

a) Entitled to assert claims under §§ 3, 5 UWG is, according to § 8 para. 3 no. 1 UWG, the competitor within the meaning of § 2 para. 1 No. 3 UWG, i.e. any entrepreneur who is in a concrete competitive relationship with one or more entrepreneurs as a supplier or buyer of goods or services. A specific competitive relationship exists if both parties attempt to sell similar goods or services within the same end consumer group and therefore the competitive behavior of one party can affect the other, i.e. hinder or disrupt sales. Since, in the interest of effective protection of individuals under unfair competition law, there are generally no high requirements for the existence of a specific competitive relationship, it is sufficient that the infringer competes in some way with the affected party in the specific case. A concrete competitive relationship is therefore to be assumed if there is an interaction between the advantages that one party seeks to achieve for its company or that of a third party through a measure and the disadvantages that the other party suffers as a result, in the sense that its own competition can be promoted and the competition of a third party can be impaired (see BGH GRUR 2015, 1129 – Hotelbewertungsportal).

49

b) However, an entrepreneur’s status as a competitor cannot be determined in the abstract; rather, it must be linked to the specific business act in question. This determines whether the acting entrepreneur is in competition with another entrepreneur. The concept of competitor in unfair competition law is therefore action-related (see Köhler/Bornkamm/Feddersen/Köhler, UWG, 37th edition, Section 2 para. 98 with further references; Harte/Henning/Keller, UWG, 4th edition, Section 2 para. 130). It is therefore necessary, but also sufficient, that the commercial act of an undertaking can negatively influence the supply and demand position of a competing undertaking. A mere impairment is not sufficient to establish a competitive relationship if there is no “competitive element” in the supply and demand competition (Harte/Henning/Keller, UWG, 4th edition, Section 2 para. 133).

50

c) In contrast to the facts underlying the decision BGH GRUR 2015, 1129 – Hotelbewertungsportal, the commercial act of the defendant in the present case, namely the provision of a doctor rating portal, does not affect the competition of the plaintiff, who works as a dentist. Even in the case decided by the BGH, the parties did not offer similar services. However, it was sufficient there that the reviews on the hotel review portal of the defendant there increased the attractiveness of its online travel agency linked to the portal, which in turn impaired the sales of the accommodation services of the hotel concerned of the plaintiff there (see also Harte/Henning/Keller, UWG, 4th edition, Section 2 para. 145). In the present case, however, the defendant neither offers medical services nor does it broker such services. As a mere portal operator, the defendant therefore does not compete with the plaintiff.

51

d) The fact that the defendant also offers interested doctors the opportunity to design their basic profile within the framework of premium offers subject to a charge can at best be sufficient to establish an abstract competitive relationship, but not to assume a concrete competitive relationship.

52

e) Nor can an indirect competitive relationship be assumed under the aspect of promoting third-party competition according to the facts presented. The mere possibility offered by the defendant to customize the already existing basic profile of the doctor to be evaluated by booking a paid premium offer means that it leaves its position as a “neutral” information intermediary (unlike in the facts underlying the decision BGH GRUR 2018, 636 – Ärztebewertung III, where the defendant, through the type of advertising, which it offered to paying doctors on its rating portal), the defendant has not – yet – created hidden advantages for individual doctors, which is why the promotion of competition from other companies by deleting positive ratings from a company is too far removed from the promotion of third-party competition to assume the existence of the requirements for a commercial act by the portal operator within the meaning of Section 2 (1) no. 1 UWG. 1 No. 1 UWG. Rather, it is a case in which the other entrepreneurs are only somehow – as if by reflex – affected in their market aspirations, which is not sufficient for the promotion of third-party competition (cf. on the whole also Büscher in GRUR 2017, 433, 436, 438).

53

2 Moreover, there is also no misleading conduct, or at least no misleading conduct relevant to competition. This is because the plaintiff, who has the burden of proof (see Köhler/Bornkamm/Feddersen/Bornkamm/Feddersen, UWG, 37th edition, § 5 para. 1.240 et seq.), could not prove that the defendant deleted valid reviews (see B.II.4.b) aa) and bb)). In addition, the deletion of ten reviews from a remaining significant number of 51 reviews and the slight drop in the overall score from 1.5 to 1.6 is also not likely to create misconceptions about the quality of the dental services offered by the plaintiff among a significant portion of the relevant public – which includes the chamber members as average consumers of medical services and at least potential users of doctor rating portals – and to influence the market decision to be made in a competitively relevant manner (cf. Köhler/Bornkamm/Feddersen/Bornkamm/Feddersen, UWG, 37th edition, § 5 para. 1.171).

54

IV. Because the plaintiff has no claim for damages against the defendant for the reasons stated above, the claim for reimbursement of costs pursued in the second claim is also unfounded.

55

C. Insofar as the subsequently submitted pleading of the plaintiff’s representative dated 4 April 2019 contains anything other than mere legal arguments, it was no longer to be taken into account pursuant to Section 296 a ZPO (see Zöller/Greger, ZPO, 32nd edition, Section 132 para. 4). A reopening of the hearing pursuant to Section 156 ZPO with regard to the new submission was also not necessary in particular with regard to the press release published by the defendant on March 13, 2019 (see also BGH NJW 2000, 142 f. and Zöller/Greger, ZPO, 32nd edition, Section 156 para. 4 and 5), because this would also not lead to a change in the distribution of the burden of presentation and evidence in the dispute. Contrary to the plaintiff’s representative’s opinion, the defendant’s submission in the proceedings, namely that the reviewers could not have been contacted in eight cases and could not have been contacted further in two cases, does not exclude the possibility that the reviews were also manipulated in this respect; a contradictory factual submission by the defendant cannot be construed from this.

56

D. The decision on costs is based on Section 91 ZPO. The ancillary decision on provisional enforceability has its legal basis in Section 709 ZPO.

Dr. Hannamann

Presiding judge

at the district court

Dr. Berger

Judge

at the district court

Holzner

Judge

at the district court

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