BGH Judgment of 14. January 2020 – VI ZR 496/18 (u.a.) – yelp.de

facts:

The applicant takes account of their representation vote on an Internet portal whose operators to cease and desist, statement  and compensation in claim.

The defendant operates the Internet at www.yelp.de An evaluation portal, where registered users by the company Award rate of one stars up to five and a text. The Internet portal displays all user contributions and classifies them without manual control automated by software and daily either as “recommended” or as “(currently) not recommended” on. at Call a company are with the name and presentation up to five stars appear, the average of the award in the “recommended” User contributions correspond (Average). is immediately adjacent “[number] posts”. Under the representation of  The company is a corresponding number of reviews – overwrite “Recommended contributions [Companies]” – each with given the assigned stars and the text. At the end of this Play is “[number] other contributions, the currently not recommended  become”. After clicking the button located next to it is The following text appears:

“What are recommended posts?

Our users post on Yelp millions of contributions. For this reason, we use automated software to  the most helpful contributions highlight. This software pulls more Factors into consideration, knows z.B. the quality, the trustworthiness and the current 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 contributions the not highlighted on the business side and not in the Overall be internalized but are listed below. Here learn more about it.”

Underneath is the caption “[number] Contributions for [Companies] are not currently recommended” with the following “Note: The articles below are not complete in the Star rating taken into account for the business.” Followed by the Play the unapproved posts.

The applicant operates a gym, to which the Evaluation portal on February 10, 2014 due to a recommended contribution  from 7. February 2014 three stars and 24 older posts with mostly positive reviews indicated not recommended as currently.

According to the applicant, the defendant has the incorrect impression that the, that the average review of all Contributions had been displayed. The distinction between recommended and currently not recommended contributions is arbitrary and not will be based on clear criteria, whereby a distorted and incorrect overall picture arises.

Previous course of the process:

The district court dismissed the action. The Higher Regional Court sentenced the defendant, to refrain, on its website for the gym or an overall expel a total number of ratings, in the contributions (reviews), the submitted by users of the aforementioned Internet had been and what the defendant as “currently not recommended” evaluates, are not included. In addition, the Court of Appeal has the Obligation of the defendant incurred and to reimburse yet found the damage incurred and the defendant to pay Attorneys' fees sentenced.

of the Federal Court decision:

Among other things, for litigation on Claims tort competent VI. Civil Senate on the revision of the defendant, the suit repellent judgment of the District Court restored. The claims made by the applicant arise not from § 824 Abs. 1 BGB. The defendant did not – as in  provided that provision – untrue facts alleged or common. Contrary to the opinion of the court expressed the Defendant not to the compromised Rating representation, that it is  the displayed average review the result of the IN QUESTION evaluation of total votes cast for the gym and  that the text next to it reproduces their number. Because the unbiased and judicious users of the portal takes Review the evaluation presentation first, how many posts the basis for  the average calculation made, and further concludes, that Basis for the calculation of averages exclusively “recommended” Post is and the indication of the number that only refers to it. The evaluation presentation of the defendants also engaged not illegal in the company's right to privacy and the Right to an established and functioning business of the applicant (§ 823 Abs. 1 BGB). The legally protected interests of the applicant outweigh not legitimate interests of the defendant. the display the evaluation average and the classification of rating as “recommended” or “not recommended” are represented by the profession- such as protected freedom of expression; a trader has to criticism of his Services and public discussion voiced criticism accept in principle.

Courts:

Munich Higher Regional Court - Judgment 13. November 2018 – 18 You 1282/16

Munich District Court I - Judgment 12. February 2016 – 25 The 24646/14

are the relevant provisions:

§ 823 BGB to pay compensation

(1) Any person who willfully or negligently life, the body, health, the freedom, the property or other Law of another injured unlawfully, is one to spare the resulting damage committed.

§ 824 BGB credit risk

(1) Anyone who claims contrary to the truth, a fact or distributed, die geeignet ist, endangering of another credit  or otherwise prejudice its acquisition or advancement bring about, the other the resulting damage has then replace, if he indeed does not know the truth, but know got to.