The law firm Dr. Thomas Schulte, Berlin, achieved another out-of-court success in the matter of Google rating – by Valentin Markus Schulte, Volkswirt, Stud. Iur, Berlin.
What are Google ratings?
Google operates an Internet search engine and gives third parties the opportunity to rate others. Humans are herd animals and reviews have considerable market power. Google itself writes: „Reviews on Google are useful for you and your customers to gain insights into customer satisfaction and other feedback. They show up on Google Maps and in Google Search next to your business profile. So reviews are also a way to better differentiate your business from competitors.“
Initial situation for reviewers
A young mother had truthfully rated a company. The client had rated the company on Google and reported on her own experiences in connection with the cooperation with the company. Despite critical discussion of the company’s performance, three stars were awarded.
Reaction of the rated company
With a ten-page lawyer’s letter, the southern German medium-sized company turned to a young mother to enforce injunctive relief and thereby remove a Google rating that was unfavorable for the company. Attached to the letter was a declaration to cease and desist and an undertaking that was very disadvantageous for the client. Very strong pressure was built up with short deadlines. The legal basis was to be derived from §§ 823, 1004 of the German Civil Code (BGB).
Section 823 of the BGB states: „(1) Anyone who intentionally or negligently causes unlawful injury to the life, body, health, freedom, property or other right of another is obliged to compensate the other for the resulting damage. (2) The same obligation shall apply to a person who violates a law intended to protect another person. If, according to the content of the law, it is possible to violate it even without fault, the obligation to compensate shall arise only in the case of fault.“
§ Section 1004 of the Civil Code standardizes the legal right to removal and injunctive relief and reads as follows: „
(1) If the property is impaired in a way other than by deprivation or withholding of possession, the owner may demand the removal of the impairment from the interferer. If further interference is to be feared, the owner may sue for injunctive relief. (2) The claim is excluded if the owner is obliged to tolerate.“
What is the legal situation? Google reviews often permissible and covered by freedom of opinion
The Federal Court of Justice (Bundesgerichtshof) as the highest German civil court (e.g., BGH ruling of October 30, 2012 – VI ZR 4/12; BGH ruling of March 11, 2008 – VI ZR 7/07), the Federal Constitutional Court (Bundesverfassungsgericht) as the highest constitutional body of the German judiciary (e.g., BVerfG ruling of December 7, 2011 – 1 BvR 2678/10), and other courts have determined that Google reviews are also covered by the right to freedom of expression. Freedom of expression is a constitutional fundamental right (Article 5 of the German Basic Law (GG)) and represents a very high good in our legal system. Thus, Article 5 GG states „Everyone has the right to express and disseminate his opinion freely in speech, writing and pictures and to inform himself without hindrance from generally accessible sources“ and further: „These rights find their limits in the provisions of general laws“. Restrictions are therefore only possible if other rights so require.
Legal system – freedom of expression ends where the lie begins
Restrictions can thus only be considered in this case in the case of an untrue statement of fact or in the case of defamatory criticism. In other words, an untrue statement of fact is simply a lie, whereas, according to the Federal Constitutional Court (cf. BVerfG decision of 26.06.1990 – 1 BvR 1165/89), defamatory criticism exists if the expression of opinion, beyond polemical and exaggerated criticism, consists in the disparagement of the person. Possible defamatory criticism is to be interpreted restrictively. Thus, the OLG Dresden states that „the statement that the applicant. does not shy away from criminal conduct in business dealings and is to be regarded as the presumed backer of a third party who is also to be accused of criminal conduct“ does not yet constitute defamatory criticism (OLG Dresden, decision of 16.1.2018 – 4 W 1066/17).
In the case described above, there was neither an untrue statement of fact nor defamatory criticism, so that a deletion was out of the question.
Summary – Have a Google review deleted
It should be noted that even unpopular reviews of companies must be tolerated. This is guaranteed by the freedom of opinion, which is not limited in time. Furthermore, it should be noted that the purpose of Google reviews is precisely that customers share their experiences with companies publicly and, in the best case, companies deal with this criticism objectively instead of trying to force a deletion through threatening gestures.
Valentin Markus Schulte
Economist, Stud. Iur
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