Bundesgerichtshof; 2020-01-14; Bewertungsportal, Fitness-Studio-Betreiber; VI ZR 496/18
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2020:140120UVIZR496.18.0
Date: 2020-01-14
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE0114(51)_ENG_SUMJURE
JURE summary
JURE summary
A company domiciled in Germany operating fitness centres in Germany (hereinafter ‘the plaintiff’) filed an action against the operator of the online platform www.yelp.de, a company domiciled in Ireland (hereinafter ‘the defendant’), due to the reviews presented thereon, seeking the issuance of a cease and desist order and the determination and payment of compensation for damage.
The defendant was using automated software to classify user reviews as ‘recommended’ or ‘(momentarily) not recommended’. The software took into account several factors such as the quality, credibility and the previous activity of the user on Yelp.
Regarding the plaintiff's fitness centre in Ebersberg, the review portal showed three stars based on three recommended reviews and on 24 older, mostly positive reviews, classified as momentarily not recommended.
According to the plaintiff, the defendant created a wrong impression that the rating average was based on all reviews. The differentiating between recommended and momentarily not recommended reviews was arbitrary and was not conducted under comprehensible criteria.
The Landgericht München (hereinafter ‘the Court of First Instance’) dismissed the action.
The Oberlandesgericht München (hereinafter ‘the Court of Appeal’) upheld the action regarding the cease and desist request stating that the defendant was liable as a direct wrongdoer. The total ratings represented the value judgments of the defendant regarding the quality of plaintiff’s fitness centres. The reader understood that the total ratings shown on the beginning of the page represented the results of the evaluation of all reviews. The need for the protection of the plaintiff prevailed, as the whole ratings system followed from an inadequate base.
The defendant pursued its claims further by filing an admissible revision with the Bundesgerichtshof (hereinafter ‘the Supreme Court’), seeking the dismissal of the appeal. The revision was successful.
The Court of Appeal correctly stated that it held international jurisdiction under Article 7(2) of the Brussels I Regulation (recast) (1) and German law was applicable.
By classifying and marking the reviews as ‘recommended’ or ‘not recommended’, the defendant expressed solely a value judgment regarding the reviews. The defendant itself did not rate or evaluate the fitness centres and did not appropriate these. An appropriation would be given if the portal operator would have accepted responsibility for the content published on its online portal, and this acceptance would have been externally recognisable; this would have been determined by objectively evaluating all relevant circumstances. However, this was not the case in this dispute.
The Supreme Court annulled the decision of the Court of Appeal to that extent in which it was disadvantageous for the defendant.
(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.