The German Federal Court (Bundesgerichtshof) rendered an important ruling on jurisdiction and applicable law in claims against internet portals publishing crowd-sourced reviews about businesses on 14 January 2020 (BGH VI ZR 497/18).
Yelp Ireland Ltd., a company incorporated under Irish law, offers a well-known website and application (“app”) providing businesses recommendations. Yelp uses an algorithm to determine how reviews are arranged, distinguishing between “Recommended reviews” and “Currently not recommended reviews.” When calculating the rating (“stars”) of a business, only “recommended reviews” are taken into account.
Yelp was sued by the owner of a German fitness studio, who complained that this mode of calculation had created a distorted picture of its business because a number of older, more favourable reviews had been ignored. The claim was brought before a German court at the place of business of the claimant.
The Easy Part: Jurisdiction
The issue of jurisdiction was rather straight-forward. The Federal Court had to decide whether the claimant had suffered damage in Germany and could therefore bring the claim under Article 7(2) of the Brussels I bis Regulation.
Tthe Federal Court started by clarifying that Art. 7(2) Brussel Ibis Regulation also covers violations of personal rights and actions for injunctive relief. Insofar, it referred to the CJEU decision in Bolagsupplysningen, which had held that “a legal person claiming that its personality rights have been infringed by the publication of incorrect information concerning it on the internet and by a failure to remove comments relating to that person can bring an action for rectification of that information, removal of those comments and compensation in respect of all the damage sustained before the courts of the Member State in which its centre of interests is located” (CJEU, Bolagsupplysningen, margin no 44).
The Federal Court applied this standard and ruled that the claimant had its centre of interests in Germany where it carries out the main part of its economic activities. It thus found that it had international jurisdiction over the claim.
The Hard Nut: Applicable Law
Much more arduous was determining the applicable law under Article 4(1) of the Rome II Regulation. This is also the most interesting part of the decision.
The source of the problem is Article 1(2)(g) of the Regulation, which excludes “non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation” from the scope of the Regulation. It was doubtful whether the business in the present case had claimed such a violation. If it had, the Rome II Regulation would be inapplicable and German Private International Law would govern. The latter uses a different general conflict rule to the Regulation, giving tort victims in all cases a choice between the law of the place of tortious conduct and the place of damage (Art 40(1) Introductory Code to the German Civil Code – Einführungsgesetz zum Bürgerlichen Gesetzbuch (EGBGB)).
Whether companies can be victims of “violations of privacy and rights relating to personality, including defamation” in the sense of the Rome II exclusion is subject to debate in the literature (see e.g. Andrew Dickinson, The Rome II Regulation, OUP 2008, margin no 3.227; Anatol Dutta, IPRax 2014, p. 33, 37). The German Federal Court avoids this point by a “trick”: It deems the submissions made by the claimant as conclusive evidence of an implicit choice of German law. Thus, it would not matter whether the Rome II Regulation applies or not. In both cases, German law would be applicable, either as a result of Article 4(1) of the Rome II or of Article 40(1) of the EGBGB.
Although the decision of the Federal Court provided clarity in the individual case, it did not answer the fundamental question of the scope of the exclusion under Article 1(2)(g) of the Rome II Regulation. In this respect, it is agreed that Article 1(2)(g) of the Regulation must be interpreted autonomously. It therefore does not matter whether national law grants companies personality rights or not.
The wording of Article 1(2)(g) does not differentiate between violations against natural or legal persons. The very term “legal person” and the concept of “legal personality” suggests that corporations may have “personality rights” in the sense of the provision. The decision in Bolagsupplysningen also points in this direction, though it concerned international jurisdiction and not the applicable law.
From a systematic viewpoint, however, the existence of Article 6(1) of the Rome II Regulation means that negative statements made in a commercial context must fall into the Regulation’s scope, as they make out a large part of unfair competition claims. Thus, they cannot be excluded under Article 1(2)(g) of the Regulation, regardless of whether they are brought against a legal or a natural person.
Historically, the exclusion under Article 1(2)(g) can be explained by conflicting views on the implications of the freedom of the press and other media and the freedom of expression for private international law. The Member States could not agree whether to use a connecting factor favouring the publisher’s freedom or the victim’s protection. For this reason, they decided to exclude the violation of personality and privacy rights from the provision’s scope altogether.
This background points to the need of careful construction of Article 1(2)(g) of the Rome II Regulation; the exclusion it contains must not be understood too widely. An overly broad interpretation would also run against the effectiveness of the harmonised rules.
The proper decision would have been to apply the Rome II Regulation to negative online reviews of legal or other persons’ commercial activities. They should be seen as falling squarely in its scope. This also includes the question of how business ratings are calculated. It is unfortunate that the German Federal Court missed this opportunity for clarification.