BGH: Liability for anonymous reviews on Internet opinion platforms

BGH, judgment of 1 July 2014 (File No. VI ZR 345/13 – Physician Review Portal)

Head notes:

1. A data subject whose personal rights were injured by the content of an Internet website (here: a website for the evaluation of physicians) may be entitled to a prohibitive injunction against the service provider. In addition, under Secs. 14 II and 15 V 4 TMG, the service provider may provide information about inventory, use, and billing data in an individual case, when ordered to do so by a competent body, to the extent that this is among other things necessary for criminal prosecution.
2. However, in the absence of a statutory authorization, such as that under Sec. 12 II TMG, the operator of an Internet portal is basically not authorized, without the user’s consent, to transmit a user’s personal data to the data subject in order to satisfy a claim for information based on an alleged violation of personal rights.

Comment

The BGH had to rule on the legal consequences for the platform operator arising from the posting of an anonymous evaluation of the professional services of a physician, which was impermissible because it contained false allegations of fact, on an Internet platform provided for this purpose. The affected physician complained to the platform operator about the false blog entry concerning himself, and the platform operator deleted the entry. The anonymous reviewer then reposted the deleted entry. This game apparently continued until the physician finally sued the platform operator for a prohibitive injunction and information about the identity of the author of the incorrect evaluation. The lower courts sustained the complaint. The Court of Appeal permitted an appeal on points of law – but limited to the order to disclose third-party information regarding the author of the review. The BGH overturned the order to provide information.

There is no statutory basis authorizing the disclosure of the data

Admittedly, the BGH assumed that the general prerequisites for a claim for the disclosure of third-party information under Sec. 242 of the German Civil Code (BGB) had been met. However, the platform operator was not permitted to disclose such information because Sec. 12 (2) TMG precluded this. There was no legal provision authorizing the platform operator within the meaning of Sec. 12 (2) TMG to disclose the user data of the author of the unlawful review. The provisions of Sec. 242 BGB, from which the accessory claim for information derives, do not expressly relate to telemedia – as required by Sec. 12 (2) TMG. The provisions of Secs. 14 (2) and 15 (5) Sentence 4 TMG also do not provide a basis for such an authorization since these provisions only permit the disclosure of information for the purposes of criminal prosecution, police measures to avert danger, matters of constitutional protection, as well as for the purposes of the Federal Intelligence Service (BND), the Military Counter- Intelligence Service (MAD) and the Federal Office of Criminal Investigation (BKA) and to enforce intellectual property rights, but not for the purpose of protecting personal rights. Moreover, the aforementioned provisions may not be analogously applied since, according to the legislative history, the legislators were aware of the fact that violations of personal rights – in contrast to violations of intellectual property rights – did not authorize thedisclosure of information under Secs. 14 (2) and 15 (5) Sentence 4 TMG when they drafted the TMG and nevertheless did not include such a provision, so that there is no inadvertent gap in the provisions, which is necessary for the provisions to be analogously applied. Since, in the absence of a statutory authorization to disclose the information within the meaning of Sec. 12 (2) TMG (or in the absence of the affected user’s consent to the disclosure of his personal data, which of course would also have been sufficient, but was apparently lacking here), it was legally impossible for the platform operator to disclose the information (Sec. 275 (1) BGB), the complaint seeking the disclosure of this information could not be sustained.

In this regard, the BGH rightly notes that the unequal treatment of the disclosure of information when there is an infringement of intellectual property rights, on one hand, and when there is a violation of personal rights, on the other hand, appears to make little sense. The courts cannot help in this case due to the clear language of the statute and the conscious decision of the legislators against including personal rights on the list of authorizations in Secs. 14 (2) and 15 (5) Sentence 4 TMG, though. The legislators themselves must change the situation.

Prohibitive injunction against the platform operator as a make-shift solution

However, all is not lost for the affected physician since he is still entitled to prohibitive injunction against the platform operator (even though he cannot proceed against the author of the unlawful review himself without knowledge of his identity). At least the platform operator will be able – and obliged – to prevent any reposting of the deleted review using largely the same words (e. g. through the use of suitable software). Under the BGH’s legal precedent regarding file-hosting service  roviders’ liability for copyright-infringing link collections it may be possible to demand manual review of the content posted by the pertinent user to uncover substantially similar violations. However, it is clear that proceeding against the platform operator is of less assistance to the affected physician than proceeding against the author of the false review, since only by taking the latter action could the posting of additional false allegations in violation of the physician’s rights be averted.

Conclusion

Under the law as its stands, anonymous entries on telemedia services that violate personal rights can only be challenged by proceeding against the platform operator and therefore cannot be challenged with optimal efficiency. Legislators would have to act to amend the law in the future in order to change thi s situation and create astatutory basis for the disclosure of user data by the platform operator to the party affected by the posting.