How to remove negative Google reviews

In order to stand out from the competition and win new customers, good reviews on the Internet are essential today. Almost every Internet user reads reviews about their potential contractual partner on the Internet before concluding a contract – whether it is the purchase of a product or the use of a service. Even if the prospective customer does not explicitly search in review portals, in most cases reviews are displayed directly in the search results when searching on Google. Reviews therefore have a considerable influence on the economic success of companies and the self-employed. Negative reviews entail the risk that potential interested parties will decide in favor of another contractual partner. This results in considerable financial losses for entrepreneurs.

Negative review from  Google

However, the overall rating on the Internet often gives a false impression of the company. It is not uncommon for negative reviews to be written anonymously by competitors in order to damage the company. Again and again, disappointed customers leave negative reviews even though the company is not responsible for the circumstances (e.g. because they don’t like the item or it doesn’t fit). Often, false claims are made or insults are uttered. Especially for companies with few reviews, even a few bad reviews have a significant impact. Active review management is therefore the order of the day. On the one hand, this means encouraging satisfied customers to leave positive reviews and, on the other hand, deleting unlawful – unfair – reviews.

This article is intended to provide an overview of when action against negative reviews has a chance of success.

1. Permissibility of reviews

In principle, it is permitted to rate companies and self-employed persons (Federal Court of Justice, judgment of 06/23/2009 – VI ZR 196/18; Federal Court of Justice, judgment of 09/23/2014 – VI ZR 358/13; Federal Court of Justice, judgment of 02/20/2018 – VI ZR 30/17). Reviews are subject to the right of expression. The display of reviews or the operation of websites on which customer reviews are collected and made available to the public is also permitted. The background to this is that, according to case law, review portals generally fulfill a function that is approved and desired by the legal system.

However, reviews are subject to certain regulations and must comply with certain requirements in order not to be unlawful. Not every review has to be accepted by the person concerned.

2. Expression of opinion vs. statement of fact

In the case of statements – including reviews on the Internet – a distinction must be made between statements of opinion and statements of fact in the context of the question of admissibility, i.e. whether they are lawful or unlawful.

Statements of fact

Statements of fact are statements about events or occurrences in the past or present that are amenable to evidence. True statements of fact are generally permissible and must be accepted by the person concerned. However, successful action can be taken against untrue statements of fact, as the fundamental right to freedom of opinion must recede behind the personal rights of the person concerned (BVerfG NJW 1999, 1322).

 

Expression of opinion

An expression of opinion is the disclosure of value judgments that are characterized by elements of opinion and support. In this context, correctness or meaningfulness are irrelevant. Expressions of opinion are generally permissible due to the protection afforded by Article 5 of the German Constitution and are therefore reasonable for the person affected or evaluated. It is irrelevant whether the expression of opinion is useful or harmful, valuable or worthless for other people. The motives that led to the expression of an opinion are also irrelevant. However, expressions of opinion can also interfere with the personal rights of the person concerned. The question of whether such expressions of opinion are permissible or unlawful must be weighed up for each specific individual case between the fundamental right to freedom of expression and the general right of personality or the company’s right of personality. In particular, the author’s interest in the disclosure and dissemination of their statement and the interest of the person concerned in their public image must be taken into account. In the case of reviews published on a platform, the platform operator’s freedom of communication and the public’s right to information must also be taken into account as part of the balancing process.

The following groups of cases represent expressions of opinion in which a balancing of interests is usually in favor of the person concerned and action is therefore likely to be successful.

2.1 No contact (fake review)

Reviews that state that there was contact between the author of the review and the person being reviewed or that a service of the person being reviewed was used, although this was not the case, are also regularly inadmissible. The balancing of interests to be carried out in this context is normally in favor of the rated person. If a review that suggests contact between the author and the rated person is in fact not based on any contact, the balance of interests is to the detriment of the reviewer. If a statement of opinion is based on a factual core, this factual core must also be true. According to case law, the reviewer has no interest in an experience that did not take place. Similarly, the public has no interest in a report on an experience that did not take place.

2.2 One-star rating without text

In principle, it is perfectly permissible to express your opinion by giving a rating with a certain number of stars without writing any text. However, the prerequisite for this is that there must be an actual reference point for the rating. A viewer of a “one-star rating” generally assumes that a performance of the person concerned is being assessed. This presupposes that there was contact or points of contact between the author of the rating and the person concerned. However, if there were no points of contact, such evaluations are generally inadmissible.

Case law is not entirely consistent with regard to the question of which points of contact must have taken place between the reviewer and the reviewee in the context of “one-star reviews” without text. While, for example, according to the rRegional Appeal Court Nuremberg (judgment of 07/17/2019, Ref.: 3 W 1470/19) and the District Court Hamburg (judgment of 01/12/2018, Ref.: 324 O 63/17), the evaluator must have made use of the service of the person concerned, the District Court Augsburg (judgment of 08/17/2017, Ref.: 022 O 560/17), among others, allows it to be sufficient if the evaluator has come into contact with the person concerned in some way. In the opinion of the District Court Luebeck (judgment of 06/13/2018, Ref.: 9 O 59/17), on the other hand, a negative review without text always constitutes an unacceptable infringement of personality rights.

2.3 Multiple ratings and concerted actions

The above principles also apply to so-called concerted actions, i.e. cases in which an affected party is confronted with a number of negative reviews that are based on an agreement or targeted coordination between the reviewers. Such actions are usually aimed solely at harming the person concerned.

In the context of such actions, the person concerned is to be harmed by the fact that as many negative ratings as possible are submitted, which in turn lower the overall average rating. It is conceivable that a person who has actually had a bad experience with the services of the person concerned expressly incites third parties to submit false reviews or that third parties submit inaccurate reviews of their own accord out of solidarity or for other reasons.

Reviews submitted as part of such actions are generally inadmissible, as their sole aim is to harm the person concerned. Whether there was a specific agreement between the reviewers is irrelevant. The unlawfulness initially follows from the fact that most of the reviewers had no personal experience or points of contact with the person concerned. In addition, the interest of a reviewer in expressing an opinion that is exclusively aimed at harming the person concerned and is also based on an untrue factual core cannot outweigh the interest of the person concerned.

3. Claims of the person concerned in the event of inadmissible ratings

In the event of an unlawful review, the person concerned is entitled to various claims.

Inadmissible comments constitute a violation of the general right of personality, as they have a detrimental effect on the public image of the person concerned. The person concerned is therefore entitled to compensation in accordance with Sections 823 (1), 1004 (1) sentence 2 German Civil Code (BGB) in conjunction with Art. 2 Para. 1, Art. 1 Para. 1 German Constitution, in addition to a claim for removal, the person concerned is also entitled to injunctive relief. While the removal of the infringement includes the deletion of the specific review, the injunctive relief includes the prohibition to post the review in question again. There are also claims for correction and rectification.

If the unlawful review originates from a competitor, the affected party is also entitled to competition law claims under the German Act Against Unfair Competition (UWG).

Finally, in individual cases there may also be claims under Section 824 of the German Civil Code (BGB) for endangering credit and/or under Section 826 BGB for intentional immoral damage.

As a rule, the data subject does not have a claim against the portal operator (e.g. Google) to delete the (review) profile. This is justified by the fact that the portal operator’s freedom of communication outweighs the data subject’s right to informational self-determination, i.e. to the publication and storage of personal data (German Federal Court of Justice, judgment of 06/23/2009, Ref.: VI ZR 196/08; German Federal Court of Justice, judgment of 09/23/2014, Ref.: VI ZR 138/13). Only the Jameda platform has been ordered by some courts to delete certain review profiles. In each case, the background to the decisions was that the profiles created by the platform operator were intended to pressure doctors into taking out a premium membership. Since the profiles of premium membership members showed photos as well as additional information, while non-premium members only showed a gray silhouette, in the opinion of the courts, the platform created a psychological predicament and thereby abandoned its position as a neutral provider of information (District Court Bonn, judgment of 03/28/2019, Ref.: 18 O 143/18; District Court Wuppertal, judgment of 03/29/2019, Ref.: 17 O 178/18).

4. Claims due to violation of the guidelines of the portal

In addition, the data subject may have claims arising from the fact that reviews violate the legal guidelines or terms of use of the portal or the website on which the review was published.

For example, Google’s guidelines prohibit reviews that

• are inaccurate because they do not reflect your own actual experience
• aim to manipulate the overall rating
• represent multiple ratings
• pursue political, social or personal issues
• reflect illegal content, such as copyright infringements, depictions of violence, terrorist or sexual content
• contain hate speech, threats or intimidation against people
• are posted without authorization on behalf of other persons, companies or organizations
• relate to your own company
• contain negative content about a competitor

5. Correct opposing party

If there is an unlawful rating, the question arises towards whom the claims can be asserted.

5.1 Rater

In principle, the person who has posted an unlawful review is subject to the claims of the person concerned as described above. In practice, however, asserting claims against the author of a review is often associated with considerable difficulties, as unlawful reviews in particular are usually submitted anonymously or under a pseudonym. In most cases, the person concerned is not able to find out the identity and address of the reviewer. Taking action against the person or company that submitted the unlawful review therefore promises little prospect of success in most cases.

5.2 Platform operators

It is therefore much more promising to assert the infringement against the platform or the operator of the website on which the review was published.

No obligation to check in advance

It should first be noted that portal operators are generally not obliged to check the accuracy of content such as reviews before publication (Federal Court of Justice, judgment of 03/01/2018, Ref.: VI ZR 34/15). The background to this is that the portal operator is unaware of the parties involved and the facts of a review. A review of content before it is published would also be too time-consuming due to the large number of reviews.

Duty to investigate after notification of an infringement

However, operators of review portals are obliged to investigate if an affected party reports an infringement in such a sufficiently specific manner that the portal operator can assess whether or not it has occurred based on the content of the complaint.

In order to ensure that a notification of an infringement is sufficiently specific within the meaning of case law, it must fulfill the following criteria:

• Indication of the specific review complained about, including the (user) name of the author
• Indication of the URL at which the specific review can be accessed
• Detailed explanation of why the review is incorrect
• Setting a reasonable deadline within which the platform operator can clarify the facts of the case

A complaint can either be sent to the platform operator in the form of a letter (letter, e-mail, fax) or reported using the form provided on the respective website.

Duty of the portal operator to investigate

If the complaint about the infringement has reached the platform operator and meets the above requirements, this triggers the operator’s duty to investigate. The platform operator must immediately forward the complaint to the author, with the request to comment on the allegations of the person concerned within a reasonable period of time. If, for example, the person concerned claims in their complaint to the platform operator that the reviewer was never a customer and that the review is therefore inadmissible, the reviewer will have to make a concrete and substantiated statement in their response – possibly providing evidence – that they were a customer of the rated party. If the reviewer does not submit a statement within the deadline or is unable to refute the allegations of the person concerned – for example, that there was no customer contact – the review must be deleted by the portal operator.

If, on the other hand, the reviewer provides sufficiently concrete evidence in his or her statement – if necessary, also providing evidence – that the complaint of the person concerned is inaccurate – for example because, contrary to the claim of the person concerned, there was customer contact – the platform operator must forward the statement of the reviewer to the person concerned. The person concerned then has another opportunity to refute the accuracy of the reviewer’s statement by providing evidence. If they succeed in doing so, the rating must be deleted. If the person fails to do so, the review will remain publicly viewable.

Platform operator does not comply with review

If the platform operator violates the aforementioned review obligations in any way, for example because it does not forward a complaint that meets the requirements or does not begin its review within a reasonable period of time, it is liable as a so-called indirect tortfeasor. In the context of indirect fault-based liability, the platform operator is subject to the same claims of the person affected as the person who published the review. Accordingly, the claim for removal and injunctive relief can then be asserted against the platform operator. In this context, the portal operator is first warned and requested to submit a cease-and-desist declaration. If the portal operator does not comply with this obligation, the claim must be pursued by way of an injunction or legal action.

6. Ways to delete negative reviews

In principle, affected companies can initiate the deletion of a negative review themselves. Most platforms provide dedicated support forms for this purpose.

However, practice has shown that there is little chance of success in objecting to negative reviews without expert help.

Irrespective of the fact that it is often very difficult to correctly assess a specific review, platform operators often react more quickly when a review is contested by a lawyer. It often happens that a deletion is only carried out after repeated correspondence with the platform operator. If a platform operator remains inactive despite a correct complaint, either an application for an interim injunction or a lawsuit can be considered, depending on the circumstances of the individual case.

At BPM legal, we have represented a large number of cases against various portals. If you receive a negative review on the Internet or have questions about reviews on the Internet, you can contact us at any time. Here you can also have us check quickly and without obligation whether the deletion of certain negative reviews is possible.

Article by lawyer David Horvath