Tuesday, March 1, 2016

Business just got tougher for German online review sites

Online review sites have a checkered history. Praised by founders as the tool that empowers customers, often loathed by businesses, and manipulated by pretty much everybody, or so it may seem.

If you have paid attention, you have probably read about never-ending controversies surrounding Yelp, or watched the South Park episode.

Knowing Germany, it was only a matter of time until an online review disagreement would make it all the way to Germany's top court. Since German laws and courts do not have the habit of putting freedom of speech over technology they don't understand, pessimists predicted that the case would not end in favor of the review site.

So, how did it go?

The case just decided by Germany's Bundesgerichtshof revolved around medical review site Jameda, Germany's biggest online review site for doctors. Citizens can review doctors for free, doctors can buy listing packages, and there are other sections, for example on medication.

A user had written a bad review of a dentist. The dentist complained to the site, the site removed the review but put it back up after checking it. The dentist went to court, and eventually made it to the top court.

The top court decided as follows:
While reviews as such are protected as free speech, online medical review sites must verify a review if the reviewed doctor or clinic objects to a review. Verification may have to include asking the user to prove his or her visit to the doctor and to provide supporting documentation. The review site may be asked to provide the documentation to the objecting doctor if the anonymity of the user can be maintained.

In the specific case, the court held that Jameda should have asked the patient to provide a bonus booklet or a prescription. By not doing this, Jameda had failed to perform "reasonable" verification.

The court also held that the burden of verifying reviews should not be so extensive that it renders operating such a site impossible.

Anonymous reviews or reviews under a pseudonym continue to be legal. Sites have to comply with standard legitimate law enforcement warrants and court orders.
What does the decision mean?
Application of the decision is not really limited to "review only sites", a court spokesperson said. Any site with a review feature should look at its process of complaint handling and adjust it as needed.

The stipulation that anonymity be maintained when forwarding documentation to the doctor seems rather unrealistic for small practices or surgeries.

Review of certain interactions may not be documented:
In somewhat stereotypical German thinking, the court requires documents or some other proof that a patient saw the doctor on the date in question. The bonus booklets mentioned are rare these days, and routine checkups at a dentist tend to result in no paperwork for the patient. So, you either hope the review site will accept your smartphone calendar entry, or you can tell them your insurance carrier should have an invoice from the dentist for that day.
Under German data protection laws, the insurance carrier will not provide information to an online review site.

So, if you write an abysmal review under these circumstances, you can count yourself lucky if the doctor doesn't threaten a lawsuit.

Similar situations can arise in other areas. You paid cash at the restaurant and the dog ate the receipt? Tough.

You want to warn people about some consummate professional who never sent you an estimate for a project? Better keep those emails.

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