Ratings on portals such as yelp, docfinder, or Google have come to play an important role in everyday business. It is not uncommon for bad reviews to jeopardise the success of an entire company. Concern about abusive or fake and negative reviews has become so great that many businesses would prefer not to appear on rating platforms in the first place.
In two recent cases, the Austrian Supreme Court (Oberster Gerichtshof, OGH) has ruled in favour of rating platforms. In the Lernsieg Ruling (6 Ob 129/21w), the court laid down the criteria by which the admissibility of rating platforms is to be examined and has recently applied these principles in Ruling 6 Ob 198/21t:
A Viennese ophthalmologist and the Vienna Medical Association sued a physicians’ rating platform on which various physicians can be located and rated. The information provided to users is taken from a public directory without the doctors’ consent. In her claim, the ophthalmologist demanded deletion of her personal data and the ratings linked to it. For a fee, doctors can upgrade their profile and upload photos or more detailed information on this rating platform.
Ruling Criteria of the Austrian Supreme Court
The OGH examined the permissibility of the rating platform (more precisely, the permissibility of processing personal data of the individuals rated) according to Art 6 para 1 lit f GDPR and found the following three conditions having to apply:
- There must be a legitimate interest of the platform operator or third parties (the public or users).
- Data processing must be necessary to achieve this interest.
- There must be a comprehensive balancing of interests between the fundamental rights and interests of the rated individuals and the platform (or the public or users).
Please note: The ruling dealt with here only concerns natural persons, as the GDPR only protects natural persons.
Evaluation platforms often fall within the scope of protection of the right to freedom of expression (Art 10 ECHR, Art 11 GRC), as they provide the public with an organised overview of who offers which medical services and where (6 Ob 198/21t). More importantly, rating platforms offer users the possibility to express and share their opinions. In the Lernsieg ruling, the Austrian Supreme Court also emphasised that it is not important whether users can make a specific choice based on ratings (pupils cannot choose their teachers, for example). However, posting and sharing subjective critiques of acting persons fulfils a socially desirable purpose.
The inclusion of personal data that enables identification of a rated individual is prerequisite for rating platforms to operate in a useful manner. Names, job-related information, and ratings do not go beyond what is absolutely necessary.
Balancing of interests
In principle, the occupational sphere is less protected than personal aspects of life. Therefore, anyone offering their services must be prepared for critiquing of their performance and, to a certain degree, must be prepared to accept negative evaluations.
Measures taken by platforms against reviewer abuse are of great importance. There is no public benefit to be gained from abusive language, inaccurate statements damaging a person’s reputation, or from exaggerated evaluations. Also, if users can register anonymously, they are more prone to posting reviews even though they might have never been seen by the doctor in question. For this purpose, platforms have generally introduced a complaint function through which untrue statements can be deleted. The physicians’ platform involved in this case requires users to prove that they have actually been treated by the doctor in question.
Another crucial factor is the difference in services provided by a given platform for doctors who use the for-fee add-on options versus those who don’t.
Changes in MoRUG II
Thanks to the Modernisierungsrichtlinie-Umsetzungsgesetz II (Modernisation Directive Implementation Act II), the problem of fake evaluations has been recognised by Austrian legislators. Thus, Section 2 UWG (which deals with misleading business practices) now contains two new provisions:
- It is considered a misleading business practice if a business does not provide information on whether and how this business ensures that posted reviews come from customers who have actually used or purchased a featured product (Section 2(6b) UWG). However, there is no legal obligation to check reviews.
- In addition, the criteria according to which search results are ranked must be disclosed (Section 2(6a) UWG). This applies regardless of where legal transactions are ultimately concluded.
The hurdles involved in taking action against unwanted inclusion in rating portals are high. Summarising, the following is true: The less certain platform do against abusive reviews and the more options they offer to paying reviewers, the more likely it is that taking legal action against them will prove successful.