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The owner of a hotel ranking portal is not responsible for the users' validations

The owner of a hotel ranking portal is not responsible for the users' validations because they do not represent his opinion (BGH, ruling from March 19, 2015, reference number I ZR 94/13).

The defendant offers travel services on the internet. The defendant's customers can judge the hotels on a scale from one (very bad) to six (excellent). After the customer has completed his validation it is checked by a special software before it will be published. Thus the defendant will avoid to publish offenses and abusive critic against hotels and even  self validations made by the hotels 'owner. If the validation does not contain words or phrases that might be filtered by the special software then it will be published automatically. If however the validation contains certain words or phrases then a defendant's employee checks the validation and publishes it manually. From all the validations the defendant then calculates an average value that will be published on the website.

The plaintiff is the owner of a hotel. She sent a written warning to the defendant, because, according to her, a validation published on the defendant's website implied untrue details. She asked the defendant to cancel the validation and to desist in the future from publishing validations that are not true. The defendant cancelled the validation but did not sign a cease and desist declaration with penalty clause. For this reason the plaintiff decided to bring an action for an injunction.

The BGH rejected the action at the very last instance because the plaintiff has no right to ask the defendant not to publish the validations. The plaintiff made her claim under fair trade law. According to article 3(1) 1, 4 number 8 UWG (unfair competition act) it is forbidden to distribute factual statements that might damage the business of any other company. The BGH decided that the plaintiff did not himself distribute the validations and that he did not breach duties of care.

The validation cannot be considered a false allegation of fact. There is no plaintiff's statement but only a validation made by the user. The plaintiff did not make the validations made by the users his own only because he used them on statistical purpose and calculated an average value. The elaboration of an average value is not a plaintiff's personal statement. A validation is not a factual statement. Facts are such circumstances that may be documented by proves. The validation of a hotel on a scale from excellent to very bad is only a subjective perception and cannot be documented by proves. The validation is not a statement of facts but only an opinion.

The plaintiff did not infringe any duties of care. The plaintiff offers with his hotel ranking portal a telemedia pursuant to §1 art. 1 p. 1 TMG (German Telemedia Act)  and so she is a services suppliers in accordance with § 2 nr. 1 TMG. Pursuant  to §§ 7 paragraph 2, 10 p 1 nr. 1 TMG a service suppliers is only partially responsible for contents published on his website by third parties. A service supplier is liable for factual statements made by the users if he infringes his duty of care. The way he has to fulfill his duty of care depends on the circumstances of every single case. For instance there is a need to fulfill the duty of care in case of legal violation or when the service supplier offers a business model that most probably violates the law. Both these factors could not be applied to the plaintiff's case. He immediately cancelled the validation and  the fact that he has a hotel ranking portal does not necessarily mean that he has a duty of care because he has no dangerous business model.