Please note that all my articles are for informational purposes only and not legal advice. I assume no liability for the content of my articles. The articles may be out of date, the legal situation may have changed, or the specific situation in a case may need to be assessed differently. A binding consultation can only be given by me directly in the individual case. Take advantage of my free brief consultation!
The applicant claims that Yelp is injunctive relief, determination and damages for its assessment representations.
As many will know, registered users on Yelp can rate companies by awarding one to five stars and a text post. The problem with this: Yelp accepts all reviews and classifies them as automated and up-to-date either “recommended” or “(currently) not recommended” without manual control by a software.
When a company is called up to Yelp, the name and appearance of a company displays up to five stars that correspond to the average of the award in the “recommended” posts. Immediately next to it is the indication “[number] contributions”. A corresponding number of ratings are reproduced with the stars awarded and the text post, overridden by “Recommended Posts for [Company]”. At the end of this playback, “[Number] of other posts that are not currently recommended” is written. After clicking on the button next to it, the following text is displayed:
“What are recommended reviews?
Our users publish on […] Millions of contributions. For this reason, we use automated software to highlight the most helpful posts. This software takes into account several factors, such as the quality, trustworthiness and previous activity of the user […]. This process is the same for all business listings and has nothing to do with whether a company is an advertiser with us or not. However, the contributions that are not directly included in the overall rating are listed below. Find out more here.”
This includes the heading “[Number of] Contributions to [Company] are not currently recommended” with the following “Note: The posts below are not included in the entire asterisk rating for the business.” This is followed by the playback of the non-recommended contributions.
The applicant operates two gyms. It believes that Yelp is embracing opinions in users’ posts. The distinction between recommended and currently unrecommended contributions is arbitrary and not based on comprehensible criteria, which creates a distorted and incorrect overall picture.
Previous process history
The Regional Court of Munich dismissed the action. The Higher Regional Court of Munich, on the other hand, has ordered Yelp to refrain from showing an overall rating or a total of reviews for the gyms in the territory of the Federal Republic of Germany, in which posts and reviews submitted by users were submitted. which Yelp considers “not recommended at this time” will not be included. In addition, the Higher Regional Court has found Yelp’s obligation to compensate for any damage incurred and any damage that may arise. Yelp is pursuing its application for an appeal with the revision approved by the OLG Munich.
The decision?
Yesterday was a hearing at the Federal Court of Justice in Karlsruhe. So far, however, no further information on the tendency of the BGH is known. The date of a decision is to be 14 January 2020. The decision is likely to have a major impact on other assessment platforms. Together with the decisions around Jameda (see e.g. this article) and the current controversy around teacher evaluation apps, some evaluation platforms are likely to have to carefully examine their own functions in the future, so as not to be targeted by potential unjustified companies/products on their own platform. The possible damages in the event of a violation of the rights of third parties can be enormous in this case.
Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.
