Anonymity of Reviewers on Employer Review Portals: Conflicting Court Rulings and Legal Uncertainty
Recent rulings by higher regional courts highlight the complexity surrounding the anonymity of reviewers on employer review platforms like Kununu. These decisions underscore that accepting a single Higher Regional Court ruling is not always necessary, especially when different courts reach divergent conclusions. The judgments from the Higher Regional Courts of Dresden and Hamburg exemplify the intricate legal landscape in this area.
While one court prioritizes the protection of anonymity, the other emphasizes companies' right to verify reviews. This divergence reflects the challenge of balancing the interests of evaluators and the companies being evaluated. Case law must weigh the importance of employer review portals for labor market transparency against protecting companies from unjustified reviews. This situation also emphasizes the need for continuous development of the legal framework for digital platforms. The resulting legal uncertainty for companies and platform operators demands clarification from the highest court.
The OLG Dresden: Protection of Anonymity Prioritized
In its ruling of December 17, 2024 (Ref. 4 U 744/24), the Dresden Higher Regional Court adopted a clear stance: the anonymity of reviewers takes precedence. The court determined that Kununu, as a platform operator, is not generally obliged to disclose the reviewer's identity. Instead, it is sufficient for Kununu to conduct an appropriate review process in response to company complaints.
The OLG Dresden emphasized:
“Unlimited disclosure of the reviewer’s identity cannot be demanded as a rule.”
The platform must respond to company complaints, clarify the facts, and obtain evidence of an actual employment relationship. This evidence must then be submitted to the company in an anonymized form. This decision acknowledges the importance of anonymous reviews for freedom of expression and information flow. It primarily holds the platform operator responsible for conducting a proper review without revealing the reviewer’s identity.
This approach strengthens the position of employees, enabling them to share experiences without fear of reprisal. Concurrently, the court stressed that companies are not defenseless against unjustified reviews, as platform operators are subject to verification obligations. Furthermore, aspects of data protection play a significant role in these considerations.
The OLG Hamburg: Emphasis on the Right to Verification
Conversely, the ruling of the Higher Regional Court of Hamburg from January 28, 2025 (case no. 7 U 16/24) presents a different perspective. The Hamburg judges argued that companies must have the right to verify the existence of an actual employment relationship. They stated:
“Even if § 21 TTDSG [...] should have this consequence, this should not mean that a rating may be kept publicly accessible as long as the rated person is deprived of the opportunity to clarify whether it is based on a business contact with the rater at all”.
The Higher Regional Court of Hamburg contended that anonymized evidence is insufficient if it prevents the company from verifying the reviewer's identity. The court emphasized that companies must not be denied the opportunity to verify the identity of reviewers, and data protection concerns cannot override the need for identification.
The court views the possibility of verification as essential protection for companies against false or malicious reviews. It highlighted that companies' rights must not be secondary to the protection of anonymity. This decision bolsters the position of employers and underscores their right to protection against unjustified reputational damage. While acknowledging that this may conflict with data protection regulations, the court did not consider it an insurmountable obstacle.
Implications for Kununu and Companies
These conflicting rulings create significant challenges for Kununu and similar platforms. They are tasked with both protecting reviewer anonymity and providing companies with avenues to challenge unjustified reviews. For companies, this means their rights regarding review verification could vary depending on the jurisdiction.
Challenges for Platform Operators
Platform operators must now develop processes that consider both court decisions. This can lead to a more complex review process. The inconsistent handling of reviews could also impact the credibility and utility of employer review portals.
Strategies for Companies
Companies should reconsider their strategies for managing employer reviews and potentially adopt a more proactive approach to reviewing and challenging them. This situation also offers companies the chance to actively defend their legal position and, if necessary, contribute to clarifying the legal situation through further court proceedings. Given the complexities, businesses, especially start-ups, should seek expert legal advice.
Outlook for Employer Review Portals
The discrepancy between these rulings clearly indicates a substantial need for clarification in this area. It is anticipated that the Federal Court of Justice will address this issue in the near future to establish a uniform legal solution. Until then, platforms like Kununu operate in a legal grey area, performing a delicate balancing act between protecting reviewers and upholding companies' rights.
The Federal Court of Justice's decision will shape the future of employer review portals and could have far-reaching implications for the entire industry. It is conceivable that the court will establish a middle ground, ensuring both reviewer anonymity and a degree of verifiability for companies. A multi-stage procedure might be developed to account for both sides' interests. Until final clarification, companies should proactively exercise their rights and, if necessary, pursue legal action. Simultaneously, rating platforms should strive for transparent and fair processes to maintain the trust of all involved parties.
Conclusion
The diverging Higher Regional Court rulings underscore that the legal battle for the rights of companies and reviewers on employer review portals is far from over. Companies should recognize that a single regional court decision does not necessarily represent the final legal position. The differing approaches of the Dresden and Hamburg Higher Regional Courts demonstrate that pursuing one's legal position can be worthwhile.
In such a dynamically evolving area of law, another Higher Regional Court may reach a different conclusion. This highlights the importance of individually assessing each situation and, if necessary, pursuing legal action up to the Federal Court of Justice to achieve clarity and legal certainty.