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On Yelp, users can rate companies by awarding one to five stars and one text. The Internet portal displays all user contributions 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, up to five stars are displayed with its name and appearance, which correspond to the average of the award in the “recommended” user contributions (assessment average). Immediately next to it is “[Anzahl] Contributions”. Below the presentation of the company, a corresponding number of reviews – titled “Recommended posts for [Unternehmen]” – is reproduced in each case with the awarded stars and the text. At the end of this rendition it says “[Anzahl] other posts not currently recommended”. After clicking on the button next to it, the following text is displayed:
“What are recommended reviews?
Our users post millions of posts on Yelp. 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 on Yelp. 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. The posts that are not highlighted directly on the business page and are not included in the overall rating are listed below. Find out more here.”
Below that is the heading “[Anzahl] posts for [Unternehmen] are not currently recommended” followed by “Note: The posts below will not be included in the overall star rating for the store.” This is followed by the reproduction of the non-recommended posts.
The applicant operates a gym, to which the review portal indicated three stars and 24 older posts with predominantly positive ratings than currently recommended on 10 February 2014 on the basis of a recommended contribution of 7 February 2014.
According to the applicant, the defendant gave the incorrect impression that the average valuation of all contributions had been indicated. The distinction between recommended and currently non-recommended contributions was arbitrary and not based on comprehensible criteria, which created a distorted and incorrect overall picture.
Previous process history
The landgericht dismissed the action. The Higher Regional Court has ordered the defendant to refrain from showing an overall rating or a total number of reviews on its website for the gym, in the posts (reviews) made by users of the aforementioned website. which the defendant considers “not recommended at the moment” should not be included. In addition, the Higher Regional Court found that the defendant had been required to pay compensation and had suffered any damage that had been incurred and ordered the defendant to pay the costs of lawyers.
Decision of the Federal Court of Justice
The Sixth Civil Senate, which is responsible, among other things, for litigation on claims arising from torts, has restored the appeal of the defendant to the judgment of the regional court. The claims put forward by the applicant do not derive from Paragraph 824(4) of the 1 BGB. The defendant has not claimed or disseminated untrue facts, as provided in this provision. Contrary to the view of the Court of Appeal, the defendant did not state, in the contested assessment presentation, that the stated valuation average was the result of the evaluation of all the contributions made to the gym and that: the adjacent text reflects their number. The unbiased and intelligent user of the evaluation portal first takes out from the evaluation presentation how many contributions formed the basis for the average calculation and concludes from this that the basis for the average calculation is is only the “recommended” contribution and that the indication of the number refers only to this. Nor does the defendant’s assessment unlawfully interfere with the right of personality and the law on the applicant’s established and exercised business (Section 823(1) of the German Civil Code). The applicant’s legally protected interests do not outweigh the defendant’s legitimate interests.
The display of the average rating and the classification of user ratings as ‘recommended’ or ‘not recommended’ are protected by freedom of expression and expression; a trader must accept criticism of his achievements and the public discussion of the criticisms expressed in principle.
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.
