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In a recent reference decision of October 18, 2019, the Higher Regional Court of Thuringia dealt in detail with the question of how far-reaching the investigation obligations of Jameda as a rating portal operator are.
According to this, Jameda is also subject to extensive verification obligations if an alleged patient claims in a rating on the rating portal that there was no treatment contact with the doctor being rated, but only contact with the practice staff.
If such contact is not sufficiently documented by the alleged patient and Jameda violates its duty to investigate, the review must be removed (OLG Thüringen, Hinweisbeschluss v. 18.10.2019, Az. 1 U 599/19, available here as PDF).
Meiningen Regional Court affirms infringement of personality rights
In its judgment of 22.5.2019 (LG Meiningen, Urteil v. 22.5.2019, Az. (117) 2 O 274/19), the Meiningen Regional Court had already confirmed the case law of the Federal Court of Justice, according to which the rating of a doctor on a doctor rating platform is inadmissible without treatment contact (BGH, Urteil v. 1.3.2016, Az. VI ZR), and declared this principle to be applicable even if the author of the rating claims that he had already been rejected by the practice staff before treatment despite severe pain, but did not prove this.
The Higher Regional Court of Thuringia agreed with the judgment of the Regional Court of Meiningen and once again precisely defined the scope of the duty to investigate in its reference order.
The applicant and plaintiff in the injunction, a general practitioner in private practice, objected to a review by an alleged patient who had claimed on the doctor review portal jameda.de that he had been “turned away” by the plaintiff’s staff despite severe pain. The plaintiff was given an overall rating of 6.0.
After the plaintiff objected to the review on Jameda and disputed the allegation contained therein that the author of the review had actually been to the practice and had been “turned away” by the staff despite severe pain in the kidney area, Jameda republished the review without marks after a short removal. This was because Jameda considered the truthfulness of the review to be established by a brief description of the practice and the mention of the month and year of the reviewer’s treatment.
As a result, the Meiningen Regional Court affirmed the plaintiff’s claim for injunctive relief due to a violation of her right to privacy as the review in question contained untrue statements of fact. The court ruled that the defendant had a secondary burden of presentation and proof in the case of negative facts – in this case the lack of contact with the practice staff. In the opinion of the Meiningen Regional Court, the defendant had not fulfilled its resulting duty to investigate the alleged facts. It should not have been satisfied with the opinion of the author of the review, which merely described the practice and stated the month and year of treatment.
The Meiningen Regional Court based its decision on the case law of the Federal Court of Justice, according to which the operator of a review portal would not be fulfilling its duty to investigate if it merely asked the review author whether the material contract had occurred as claimed. Rather, it must request specific information and suitable evidence for the claims made (BGH, Urteil v. 1.3.2016, Az. VI ZR 34/15).
According to the Meiningen Regional Court, this principle also applies if the alleged patient claims that he was already turned away by the staff despite being in severe pain. In particular, a description of the practice and the mention of the month and year of treatment were not sufficient to demonstrate the alleged contact with the practice staff, according to the Meiningen Regional Court (LG Meiningen, Urteil v. 22.5.2019, Az. (117) 2 O 274/19). We reported:
Jameda has appealed against the ruling to the Thuringian Higher Regional Court:
Without success.
OLG Thuringia: Far-reaching scope of Jameda’s inspection obligations
The Higher Regional Court of Thuringia endorsed the first-instance decision of the Regional Court of Meiningen in a reference decision dated October 18, 2019 that is well worth reading. In line with the plaintiff’s submission, it stated that the defendant, as the operator of a review platform, had a secondary burden of proof. This applies in particular in the present case, in which it operates a rating portal for doctors, in which the ratings are published anonymously and only it has the possibility of contacting the author of the rating. It is then incumbent on the company to make reasonable inquiries as to whether the claim by the offending doctor that the allegations made in the review are not true can be verified.
Mere demand is not enough
In the opinion of the Higher Regional Court of Thuringia, the defendant did not fulfill its duty to investigate by merely asking whether the material contract had occurred as alleged. There was a lack of concrete information and suitable evidence for the claims made; these should have been requested by the defendant. A mere statement by the author of the valuation was also not sufficient in the opinion of the OLG.
Alleged patient must provide precise evidence of treatment contact
In its reference decision, the Chamber specifies the scope of the duty to investigate. It rightly states that the defendant should have asked the author of the assessment to describe the alleged rejection in the plaintiff’s practice in more detail and to outline any subsequent treatment and the further course of the medical history.
In addition, she should have requested a more precise date of treatment, not just the month, as well as evidence that the treatment for the alleged kidney pain was carried out by another doctor in connection with the alleged event.
Since no such follow-up was carried out, the defendant had not only breached its substantive legal obligations to investigate, but also its procedural obligations. These resulted from the secondary burden of presentation and proof. As a result, the plaintiff’s credible submission that the author of the valuation had not visited her practice during the alleged period, at least not stating that he was suffering from pain in the kidney area, was deemed to have been admitted due to a breach of the duty to investigate. The review in question should be deleted in its entirety due to a violation of the plaintiff’s general right of personality.
After the defendant withdrew the appeal as a result of the reference order, the Higher Regional Court of Thuringia issued an order on November 18, 2019, according to which the defendant is no longer entitled to appeal (OLG Thüringen, Beschluss v. 18.11.2019, Az. 1 U 599/19). The judgment of the Meiningen Regional Court of 15.5.2019 is therefore final. In the event of non-compliance, the defendant faces a fine of EUR 250,000, or alternatively imprisonment for up to six months
(Disclosure: Our law firm represented the plaintiff before the Regional Court of Meiningen and the Higher Regional Court of Thuringia).
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