Hanseatisches Oberlandesgericht Hamburg; 2016-06-30; 5 U 58/13
Decision by national courts in the field of European Union law — ECLI:DE:OLGHH:2016:0630.5U58.13.0A
Date: 2016-06-30
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82016DE0630(51)_ENG_SUMJURE
JURE summary
JURE summary
The plaintiff is a hotel company established in several European countries. The defendant is a vacation evaluation and booking company operating a website.
The plaintiff received a negative evaluation from a consumer on the defendant's website. The plaintiff requested the withdrawal of the review by e-mail and lawyer's letter before taking the case to the Landgericht Hamburg (hereinafter ‘the Court of First Instance’) because of a refusal to remove the review. The Court of First Instance granted an interim injunction to remove the commentary from the website before confirming its decision after an analysis on the merits of the case. The defendant appealed before the Hanseatisches Oberlandesgericht Hamburg (hereinafter ‘the Court of Appeal’) that granted his request and reversed the first instance decision.
The plaintiff claimed that the allegations about the lack of hygiene in its establishment were false and therefore constitute a libel within the meaning of German law. She claimed that the defendant had to control the content published on her platform, which makes her responsible for the statements made. She demanded the permanent removal of the commentary from the defendant's web portal and the payment of the legal fees.
The Court of Appeal began by confirming the jurisdiction of the German courts under Article 5(3) of the new Lugano Convention (1). The defendant is domiciled in Switzerland, which is a state bound by the new Lugano Convention, and was sued for unfair competitive practices. German law is therefore applicable.
The Court ruled that the reservation and rating services offered by the defendant cannot be separated. Therefore, there is indeed a commercial act and the two companies are indeed in competition with each other.
Nevertheless, the Court of Appeal held that the defendant did not engage in unfair competitive practices by disparagement. While the tenant offered a specific list of facts for which he negatively rated the hotel, the plaintiff had a secondary burden of proof to disprove these statements. This condition was not unreasonable or difficult to meet. However, the denial remained vague and therefore unsatisfactory. The general statement that a negative rating given to a hotel by a guest on an online rating portal is not sufficient, in the absence of any specific statement, to compel the rating portal to remove that negative feedback.
The Court also recalls that the defendant does not have editorial control over the comments posted. A rating portal does not regularly assert false facts within the meaning of Article 4(2) UWG (2), because it does not itself - as in the present case - adopt the statements and assessments of the assessors, but merely provides the platform (3).
It would therefore be unreasonable to expect the operator of a rating portal to examine each contribution for possible infringement before publishing it on the Internet. Therefore, only concrete evidence of a clear violation of the law would oblige the operator of an Internet platform to block content freely posted by users and to take provisions for the future. This is in line with the consistent case law of the Bundesgerichtshof, according to which there is no general obligation to examine third-party content for possible legal infringements before making it available on the Internet.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Gesetz gegen den unlauteren Wettbewerb (Law on Unfair Competition).
(3) Bundesgerichtshof (BGH), judgment of 19 March 2015, I ZR 94/13, GRUR 2015, 1129.