OLG Saarbrücken; 2022-09-09; 5 U 117/21
Decision by national courts in the field of European Union law — ECLI:DE:OLGSL:2022:0909.5U117.21.00
Date: 2022-09-09
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE0909(51)_ENG_SUMJURE
JURE summary
JURE summary
A dental specialist (hereinafter ‘the plaintiff’) asserted a claim for injunctive relief against the hosting provider of the internet service ‘Local Reviews’ based in Ireland (hereinafter ‘the defendant’) due to a review by a patient.
The plaintiff's patient, who is registered with the defendant for the ‘Local Reviews’ service, posted a review of the plaintiff's treatment on the platform. The plaintiff's anaesthetist had refused an operation appointment because she had presented a certificate from a psychologist stating that she had a panic fear of injections. The practice had wrongly assumed that the patient had psychological problems, which was not the case; the procedure was only to be performed under anaesthesia to avoid a panic attack and anxiety. The doctor also filed a complaint with the police for defamation.
The Landgericht Saarbrücken (hereinafter 'the Court of First Instance'), seised pursuant to Article 7(2) of the Brussels I Regulation (recast) (1), dismissed the action. The defendant, as the provider, had fulfilled its obligations to check the disputed rating. The patient's assessment should be regarded as an expression of opinion.
The plaintiff's appeal to the Saarländischen Oberlandesgericht Saarbrücken (hereinafter ‘the Court of Appeal’) was unsuccessful.
The Court of First Instance rightly denied the plaintiff's claims for injunctive relief under Article 823(1) in conjunction with Article 1004 of the BGB (2) against the defendant as a direct interferer. A host provider is not automatically obliged to check the contributions posted by users for possible legal infringements prior to publication. However, he is responsible as an indirect disturber as soon as he becomes aware of an infringement. In the present case, the defendant examined the plaintiff's allegations of a violation of his rights and correctly concluded that his rights were not unlawfully violated by the patient's assessment.
Interference with the scope of protection of the general right of personality is only unlawful if the interests of the person concerned outweigh the interests of the person making the statement that are worthy of protection. That is not the case here. The patient's assessment is to be qualified as an expression of opinion and not as a statement of fact. A factual assertion forms an objective relationship between a statement and reality. In contrast, value judgements and expressions of opinion are characterised by the subjective relationship of the person making the statement to the content of their statement.
The Court of Appeal dismissed the plaintiff's appeal against the judgement of the Court of First Instance.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
(2) Bürgerliches Gesetzbuch (Civil Code).