Bad online reviews are prohibited and can be removed if they
- violate the general right of personality of the reviewee (Article 2(1) GG in conjunction with Article 1(1) GG) and
- are not protected by the freedom of expression (Article 5 GG).
This will protect both
- private persons, entrepreneurs or freelancers themselves (natural persons) and
- companies and firms including GmbHs, UGs and GmbH & Co. KGs (legal persons) according to the German Federal Constitutional Court (BVerfG).
Precedence of the entrepreneur’s interest
A negative review must be removed if your interest in an intact personality outweighs the author’s interest in freedom of expression. The following criteria are weighed against each other:
- wording of the bad review (how harsh is the review?),
- context in which the review was made (is the author concerned with the portrayal of their experience or with denigration and abuse?),
- how an objective third party would understand the portrayal,
- which so-called protected sphere was invaded – a distinction must be made as to whether the statement refers to intimate (intimate sphere – always forbidden), private (private sphere – often forbidden) or public (social sphere – mostly permitted) conditions, facts or circumstances, and
- particularly important, the distinction between expression of opinion and factual claims – opinions are more eligible for protection.
False factual claims must be removed
Factual claims or facts give a statement about objective circumstances in reality. These circumstances must be verifiable. A factual claim is either true or false. It does not contain any personal (subjective) assessment (e.g. BGH ruling of 22 September 2009 – VI ZR 19/08). Untrue reviews are prohibited and must therefore be removed and deleted. True factual claims, however, are allowed.
Untrue reviews must always be deleted
In the case of a factual claim, it is irrelevant whether it
- represents a lie (intentionally untrue review) or
- has been made unintentionally out of carelessness or by mistake (unintentionally untrue assertion).
An untrue review must always be deleted and removed. Deliberately untrue factual claims have greater consequences for the reviewer: they are punishable (defamation pursuant to Section 187 StGB or slander pursuant to Section 186 StGB). Under certain circumstances, a review portal can be forced to hand over the reviewer’s data so that legal action can be taken against them.
Expressions of opinion may be eligible for deletion
Opinions contain a personal (subjective) evaluation by the author of a negative review, which cannot be proven. An opinion cannot be true or false. It cannot therefore be checked on the basis of objective criteria, but reflects an attitude to a situation. They can best be classified into the categories “I like” or “I don’t like”. Opinions are forbidden in individual cases and should therefore be deleted if they are contemptuous and cross the line to become abusive criticism. Other expressions of opinion are permitted.
Opinion in the form of abusive criticism is prohibited
Criticism is abusive if
- it primarily defames the person being reviewed and
- there is no objective discussion of the situation (e.g. Resolution of the German Federal Constitutional Court (BVerfGE) of 26 June 1990, Ref. 1 BvR 1165/89 = BVerfGE 82, 272).
It can even be punishable as an insult (Section 185 StGB), if the reviewee’s honour has been very strongly attacked and the reviewee has been strongly demeaned.
Opinion without factual basis must be removed
An opinion must be based on an actual fact or event. For example, if a reviewer has never bought goods from a company or been a patient at a practice, they cannot form an opinion on the matter. Accordingly, an opinion without factual basis is prohibited. It must be deleted and removed. You do not have to allow yourself to be reviewed if the reviewer has never been your customer, client or patient.
Indirect assertion of facts by expression of opinion must be deleted
Opinions and facts may also be mixed. If an expression of opinion contains an assertion that presupposes an intrinsic fact, it may be prohibited. Indirect assertion of facts through expression of opinion is prohibited. This is not always easy to recognise. The overall context of the author’s review is relevant (BGH ruling of 22 September 2009 – VI ZR 19/08). If the indirect factual claim forms the core of the review, it must be deleted and removed.
free document reviews
free initial consultations
answered forum questions