Two recent rulings by higher regional courts show that the question of the anonymity of reviewers on employer review portals such as Kununu is anything but clear-cut. These decisions also make it clear that it is not always necessary to accept a Higher Regional Court decision if different courts come to different conclusions. The judgments of the Higher Regional Court of Dresden and the Higher Regional Court of Hamburg are exemplary of the complex legal situation in this area. While one court focuses on the protection of anonymity, the other emphasizes the companies’ right to review. This divergence reflects the challenge of finding an appropriate balance between the interests of the evaluators and the evaluated companies. Case law must weigh up the importance of employer review portals for transparency in the labor market against the protection of companies from unjustified reviews. This also highlights the need to continuously develop the legal framework for digital platforms. This results in considerable legal uncertainty for companies and platform operators, which can only be eliminated by clarification from the highest court.
The OLG Dresden: Protection of anonymity
The Dresden Higher Regional Court took a clear position in its ruling of 17.12.2024 (Ref. 4 U 744/24): The anonymity of reviewers has priority. The court argues that Kununu, as a platform operator, is not obliged to disclose the identity of the reviewer. Instead, it is sufficient for Kununu to carry out an appropriate review in the event of complaints by companies. The OLG Dresden emphasizes:
“Unlimited disclosure of the reviewer’s identity cannot be demanded as a rule.”
The platform must respond to complaints from companies, clarify the facts of the case and obtain evidence of an actual employment relationship. This evidence must be submitted to the company in anonymized form. The court thus recognizes the importance of anonymous reviews for freedom of expression and the flow of information. It considers the platform operator to be primarily responsible for carrying out an appropriate review without revealing the identity of the reviewer. This decision strengthens the position of employees, who can share their experiences without fear of reprisals. At the same time, the court emphasizes that companies are not defenceless against unjustified reviews by imposing verification obligations on platform operators.
The OLG Hamburg: Right to review
This contrasts with the ruling of the Higher Regional Court of Hamburg from 28.01.2025 (case no. 7 U 16/24). Here, the judges argue that companies must have the right to verify the existence of an actual employment relationship. The Hamburg judges emphasize:
“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 argues that anonymized evidence is not sufficient if the company is unable to verify the identity as a result. The company must not be deprived of the opportunity to verify its own identity, and data protection concerns cannot override the need for identification.
The court sees the possibility of verification as an essential protection for companies against false or malicious reviews. It emphasizes that the rights of companies must not take second place to the protection of anonymity. This decision strengthens the position of employers and underlines their right to protection against unjustified reputational damage. At the same time, the court acknowledges that this can lead to a conflict with data protection regulations, but does not see this as an insurmountable obstacle.
The consequences for Kununu and companies
These divergent rulings pose considerable challenges for Kununu and similar platforms. On the one hand, they are intended to protect the anonymity of reviewers; on the other, they must give companies the opportunity to challenge unjustified reviews. For companies, this means that they could have different rights when reviewing reviews depending on the jurisdiction. This underlines the importance of not being too quick to settle for a single OLG decision, but to carefully examine the legal situation and pursue legal action if necessary. Platform operators must now develop processes that take both court decisions into account, which can lead to a complex review process. Companies should reconsider their strategies for dealing with employer reviews and possibly be more proactive in reviewing and challenging reviews. The different legal opinions may lead to inconsistent handling of reviews, which could affect the credibility and usefulness of employer review portals. At the same time, this situation offers companies the opportunity to actively defend their legal position and, if necessary, to help clarify the legal situation through further court proceedings.
Outlook
The discrepancy between the rulings shows that there is still a considerable need for clarification in this area. It is to be expected that this issue will be taken up by the Federal Court of Justice in the near future and that a uniform solution will have to be found. Until then, platforms such as Kununu are operating in a legal gray area in which they have to perform a difficult balancing act between protecting the reviewers and the rights of the companies. The BGH’s decision will point the way for the future of employer review portals and could have far-reaching consequences for the entire industry. It is conceivable that the BGH will find a middle way that guarantees both the anonymity of the reviewers and the verifiability for companies to a certain extent. It is possible that a multi-stage procedure will be developed that takes both sides into account. Until final clarification, companies should actively exercise their rights and, if necessary, take legal action. At the same time, rating platforms should make their processes as transparent and fair as possible in order to maintain the trust of all parties involved.
Conclusion
The diverging OLG rulings make it clear that the legal battle for the rights of companies and reviewers on employer review portals is far from over. Companies should be aware that a single OLG decision does not necessarily mean the end of the road. The different approaches of the Higher Regional Courts of Dresden and Hamburg show that it can be worthwhile to continue to pursue your own legal position. In such a dynamically developing area of law, another Higher Regional Court may well come to a different decision. This underlines the need to assess each situation individually and, if necessary, to take legal action up to the Federal Court of Justice in order to obtain clarity and legal certainty. Companies should reconsider their strategies for dealing with employer reviews and possibly take a more proactive approach to reviewing and challenging reviews. At the same time, they must weigh up the extent to which legal action against reviews could damage their image. Platform operators face the challenge of adapting their business models to the evolving case law and possibly implementing new procedures for verifying reviews. The current legal uncertainty also offers opportunities for innovative solutions that take into account the interests of both reviewers and companies.
