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01 February 2016

Austria: Cockroaches in the Hotel – Rating Platforms and the "Right to be Forgotten"

Is there a chance to challenge outdated user-postings on rating platforms, and thus, does an enforceable right “to leave the past behind” exist?

Advertising is good, but word of mouth recommendations are still better, since the opinion of a third party not having any commercial interest in something is usually far more convincing. Whether a planned vacation, a doctor’s visit, or the purchase of goods – there is hardly any industry in which customers do not study reviews and reports of third parties.

Such reviews and reports obviously influence purchasing decisions: Or would you book a hotel if users on various platforms said that the rooms were mouldy and verminous? Against this background, it is not surprising that numerous legal issues arise:

Fake postings

It is generally undisputed that any attempted manipulation of the public by means of fake postings (both positive and negative) would be considered to be unfair business practice. This would be true too for unverifiable expressions of opinion, because users are deceived with respect to the background and significance of such postings.

False or insulting postings

On the other hand, it is obvious that action could be taken against someone for posting insulting comments or incorrect statements of fact, because these are usually not covered by the fundamental right to freedom of expression.

Outdated postings

A specific problem arises from the fact that the Internet does not forget, and user-posts usually remain available without time limit. This can be particularly disadvantageous in the case where the relevant circumstances which lead to a bad rating have changed (eg, because a facility was totally refurbished, or a business was sold). But, is there any chance to challenge an initially correct, but meanwhile outdated user posting?

At first glance this is difficult to imagine. If the postings in question are dated users will recognize that “historical facts” are published (“rating archive”). It is then up to the entrepreneur to communicate that the circumstances have changed in an attempt to remedy the incorrect perception created by the old postings (which will then also be reflected in the course of reviews). Nevertheless, certain arguments might be justified:

Considerations under unfair competition law

Let’s proceed from the following assumption: A platform operator (leaving a possible limitation of liability as a mere provider within the meaning of E‑Commerce law out of consideration) publishes former negative reviews, although the affected business or facility (eg, a hotel) was meanwhile sold, and is now operated by a third party under a new trade name. Depending on the impression created for the platform users, this might be considered as misleading commercial practice (to the benefit of competitors of the affected party), since the negative reviews were aimed at “another person”. On the other hand, the platform operator could argue that the reviews in fact were not aimed at the former owner of the business/facility (eg, a company), but rather at the business/facility as such (which remained as is). Having said this, it would probably be even more difficult for the affected party if the trade name remained unchanged (considering that this further underlines the continuity of the business). Against this background, the impression the platform operator creates and whether such impression might be misleading (eg, unclear overall rating), always needs to be assessed on a case by case basis.

Considerations under data protection law / personality rights

Other arguments might be derived from the Court of Justice of the European Union (“CJEU”) Case C‑131/12 in which the CJEU postulated a so called “right to be forgotten”. In that case, a Spanish citizen asked Google to remove links to an older article dealing with the forced sale of his house. For data protection reasons the CJEU ruled that Google must delete these links. In summary, the CJEU was of the view that originally correct data may become incorrect as time goes by, and then may be subject to a (justified) request for deletion.

An entrepreneur affected by outdated user postings on a rating platform may face a comparable situation if the circumstances leading to the negative ratings have meanwhile changed significantly. In analogous application of the reasoning of the CJEU, an entrepreneur might try to enforce the “right to be forgotten” via the operator of the rating platform. However, many questions remain of course: The “right to be forgotten” necessarily encounters its limits if a legitimate interest in a “rating archive” exists. Ultimately, the nature and the extent of the “right to be forgotten” will strongly depend on the circumstances of each individual case.
While admittedly an extreme case, a recent Austrian Supreme Court decision (4Ob187/14z) supports the basic ideas outlined above: A media company published a picture of the handcuffed plaintiff and reported on the beginning of a murder trial, wherein the plaintiff was acquitted only one day later. While the report on the first day of the trial (in print media) was justified, the Supreme Court held that the “continued publishing” of the outdated article in the online archive of the newspaper (without informing about the acquittal) infringed personality rights.

Thus, creating a false impression by publishing outdated information might also be challengeable on the basis of personality rights and data protection law (which in fact is a specific manifestation of personality rights). However, since the public’s interest to information is protected by fundamental rights as well, a balancing of interests will be required in every single case.

Online ratings – best pal and worst enemy rolled into one. Even when forced to forget, the Internet will remember.

authors: Dominik Hofmarcher, Günther Leissler



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