Time and again, the question arises as to when a rating on Google is inadmissible. The most recent judgement of the Schleswig-Holstein Higher Regional Court of 16.2.2022 (Ref.: 9 U 134/21) dealt with this question.
What had happened? An estate agent had his own presence on Google Places. There, a customer wrote the following review:
“I personally found Mr … to be arrogant and not helpful. Mr …. told me ‘you are a customer when you have bought’. Obviously not before, that’s how I felt.”
The estate agent defended himself against this assessment in court. His claim was rejected in the lower court, and the plaintiff was also unsuccessful on appeal. The court found that the customer’s evaluation was capable of violating the estate agent’s claim to social prestige and his business honour. However, this infringement was not unlawful, as the defendant’s freedom of opinion prevailed.
On the one hand, his statement contained factual assertions (“Mr. …. told me ‘You are a customer when you have bought'”). On the other hand, it contained a value judgement (“I personally found Mr … to be arrogant and not helpful”). Since the value judgement was in the foreground here, it was to be assumed that the statement was a uniform expression of opinion subject to the protection of Article 5.1 of the Basic Law. Furthermore, the defendant’s factual assertion was also true.
Thus, the plaintiff’s interest in protecting his claim to social validity must take a back seat. It also had to be taken into account that the plaintiff had actively sought to appear on the internet and that consumers have an interest in expressing and exchanging opinions on products.
Conclusion:
A consistent judgement that comes as little surprise. An expression of opinion exists if it cannot be measured according to the criteria of “true” or “untrue”. The defendant’s personal feeling about the plaintiff’s conduct falls precisely under this. It also does not cross the boundaries of so-called “defamatory criticism” or insult.
