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False / untrue reviews - how should I deal with them?

Publication:

Customer reviews are a blessing on the one hand - but also a curse on the other.

One statistic says that almost every Internet user has already made a decision based on reviews. On the one hand, it is good when a user shares his experience with other users. But what isif it is untrue or if the Facts misrepresented become? A negative review can quickly become very costly, as new inquiries or customers fail to materialize. We are often asked: How should I deal with untrue reviews?

Fake reviews

What is actually the legal situation?

First, I want to look at the legal situation. Here, however, I must say that I am not a lawyer - I am basing myself here on information that I have obtained through our Cooperation partner of the IT-Recht law firm received in Munich.

In principle, ratings or experience reports are subject to the principle of freedom of expression. The limits for this are interpreted very broadly. However, the situation is different in the case of false statements of fact, insults or defamatory criticism.

False facts

The statement of false facts does not have to be accepted. However, this must also be provable.

The problem here is that the person who was evaluated has the burden of proof. Often the problem here is that there are obstacles due to the data protection guidelines. We advise you to coordinate these steps with your data protection officer and your lawyer.

This applies to ratings and recessions.

Abusive criticism and formal insults

Value judgments generally enjoy the protection of freedom of opinion. However, they may be inadmissible or unlawful if they are insulting (e.g. direct use of "idiot, moron, etc."). Similarly, vituperative criticism may not be permissible.

If the personal slight or defamation is in the foreground to the matter, this is often the case. There is also a fundamental decision on this from the Federal Constitutional Court (decision of September 28, 2015, ref. 1 BvR 3217/14).

How can I take action against the negative or false reviews?

Here, a fundamental distinction must be made as to which interface is used to communicate the ratings or experience reports.

Reviews / ratings in own store / website

On the own presence there are a lot of design options, how to correct corresponding evaluations.

In individual cases, consideration must be given to whether contact can be made with the relevant rater (if this can be determined) in the interests of customer loyalty. Often there is also an opportunity in the information to find an error in one's own system. This can also prevent "frustration" being released in the reviewer, which may be multiplied on other channels (e.g., social media).

The simple removal or non-disclosure of justified negative reviews is anti-competitive and can be subject to a warning (LG Duisburg Az. 25 O 54/11 of March 21, 2012).

Negative evaluations on sales platforms / evaluation portals

If you have received a negative review on a sales platform (e.g. Amazon) or through a review portal (e.g. jameda, Google my Business, etc.), you will always have to rely on the help of the platform provider (unless you can contact the rater directly and clarify the issue directly).

In the most frequent cases, the respective platform operator contacts the rater after a corresponding request and asks him to correct / withdraw accordingly.

If an unlawful or personality-infringing recession is published, you may approach 2 different entities:

  • The evaluator
  • The site operator (so-called "Stoererhaftung")

It is often advisable to approach the site operator. In many cases, the direct route is quicker and easier to implement. If the direct route to the evaluating person is chosen, the communication is often unobjective and emotional.

Update from 09.09.2022: BGH ruling facilitates deletions of unauthorized ratings

In its ruling of 09.08.2022 (Ref.: VI ZR 1244/20), the Federal Court of Justice (BGH) held the operator of a travel portal, on which, among other things, ratings for hotels and similar establishments can be submitted, liable. On the portal, reviews can be submitted for third parties as soon as a registration with the specification of an e-mail address has taken place.

The claim against the operator was already largely successful in the lower court. The Cologne Higher Regional Court (judgment of August 27, 2020, Case No.: 15 U 309/19) held that the portal operator was liable as an indirect interferer.

Although there is no general duty to check submitted ratings before publication, such a duty to check does apply if the rated party points out a clear violation of the law to the portal.

Such an infringement of rights would exist, for example, if the person making the rating had not been a guest at the rated party's establishment. If the surface receives the reference, then the operator would have to make inquiries. This obligation does not apply if the evaluation itself requires special knowledge, which is necessary a business relationship.

What is the best way to proceed if a rating is not correct?

Many site operators have special departments for such situations, which deal with the issue. You should contact them accordingly (often in writing). The exact procedure depends on the respective interface - with Amazon the procedure is somewhat different than with Google my Business, etc.

For our clients, who cooperate with IT-Recht-Kanzlei, we hold special sample letters ready (for participants of our Legal security packages).

What about corresponding comments / ratings on social media channels?

I am currently still researching this. Basically, similar principles as above should apply here. As soon as I have more information, I will add to the article accordingly.

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