Is this the death of the online review? | Fieldfisher
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Is this the death of the online review?



A recent ruling of the German federal court of justice leaves providers of online review platforms in a state of shock.

A recent ruling of the German federal court of justice leaves providers of online review platforms in a state of shock, which could extend beyond that country's borders as the judgment will affect the business models or retail businesses with websites or online platforms in Germany.

The court held that a service provider is obliged to request written evidence from its users in case a review is challenged. This puts providers in the position of a court and is likely to have a chilling effect on the use of review platforms. It will also result in negative reviews being taken down if there is no written evidence.

The underlying case concerned a review on the Jameda platform, a German review website for doctors and medical services. The plaintiff, a dentist, objected to a negative score in several multiple choice categories ("treatment", "information", "trust relationship).

In the text field, the anonymous reviewer mentioned that he "cannot recommend" the doctor and referred to the "grades section" for a more detailed assessment, emphasising that the grades were "diligently chosen". The doctor questioned whether the reviewer had ever received treatment from him, and after receiving the original complaint from the dentist, the service provider asked the reviewer to confirm his review, which he did.

The court held that the doctor's questioning of the alleged treatment was "sufficiently specific" to trigger obligations under the hosting defence laid down in European e-commerce law "as the review did not contain any description of the alleged appointment" and that, therefore, the doctor was "unable to provide any more detail for his complaint".

The court then prescribed a detailed regime regarding the duties of the platform: it would have been obliged to investigate the underlying facts by "requesting a description of the alleged appointment as well as evidence such as invoices, entries in a patient's bonus notebooks, prescriptions or other suitable evidence" from the reviewer. As these obligations were not met, the factual assertions of the plaintiff were deemed conceded.
The judgment is worrying as it may have a serious impact on the legal environment of review platforms. It puts service providers in the position of a judge by imposing a duty to investigate matters. It ignores the reality of how review platforms operate, as typically a user would not retain bills from, say, a restaurant or hairdresser.

The ruling will have a chilling effect because service providers will be forced to take a review down where no evidence can be produced by the user, and because users will think twice before publishing negative reviews given the high risk of incurring time and effort defending them.

This amounts to a violation of the platform's rights under the EU hosting defence regime and the platform's constitutional right to freedom of speech under German constitutional law.

Against this background, the assertion of the court that a service provider "cannot be forced to carry out an audit which is economically compromising or disproportionately impedes its function" looks like a fig leaf.

The article was authored by Philipp Plog and published in The Brief on 29 April.