Review platforms: “Holidaycheck” wins against Berlin Hostel

A hostel in Berlin had sued the review platform “Holidaycheck” as one of its users had wrongly claimed that the hostel had bedbugs in its rooms.

The platform “Holidaycheck” offers its user the possibility to rate hotels on a scale between 1 (very bad) and 6 (very good). “Holidaycheck” then calculates an average rating based on the individual ones. Comments of its users are automatically reviewed for insults and abusive criticism. Apart from this, there is no further examination of the content and truthfulness of the comments.

After receiving a cease and desist letter from the plaintiff, the defendant deleted the false comment but at the same time refused to sign the cease and desist declaration requested by the plaintiff.  Thus, the plaintiff sought an injunction against the operator of “Holidaycheck” claiming that the defendant is liable for untrue statements of its users and hence violates the rules of sec. 4 nr. 8, 3 (1) of the German Unfair Competition Act (UWG). The plaintiff argued that the defendant has a special duty to review its users’ comments as its business model must be considered “extremely dangerous”.

In its decision of 19 March 2015 the Federal Court of Justice (BGH), however, does not follow this argument: The Court held that the automated verification system used by the operator does not lead to the user’s statements becoming those of the platform operator. Further, it held that the law must not impose disproportionate duties to monitor and review users’ statements on a service operator and that such duties must not endanger the service provider’s business model. The judges decided that imposing an obligation to “pre-check” the truthfulness of each user rating would be disproportionate.