OLG Köln - 15 W 55/26
Facts — The data subject, a doctor, sought an injunction against the Controller, the operator of an online review platform, requiring the removal of, and prohibiting the future publication of, a notice stating that between six and ten reviews concerning his medical practice had been removed during the previous year following complaints relating to defamation under German law. The Regional Court of Cologne dismissed the application, following which the data subject lodged an immediate appeal before the Higher Regional Court of Cologne. The data subject argued that the notice was inaccurate because the reviews had been challenged on the basis that no genuine patient relationship existed, rather than on the ground of defamation. He submitted that the notice therefore created the false impression that he had complained of defamatory reviews, rendering the processing of his personal data unlawful. The Controller argued that complaints alleging the absence of a genuine customer or patient relationship fell within its internal category of complaints concerning defamation under German law and that publishing the number of removed reviews promoted transparency regarding its review moderation process. Holding — The court held that where a data subject seeks not only the erasure of personal data but also an injunction preventing its future publication, Article 17(1) GDPR provides a basis for both forms of relief. It further held that the journalistic exemption under Article 85(2) GDPR did not apply because the Controller's review platform, including the automated notices relating to removed reviews, did not process data for journalistic purposes. The court also held that the displayed number of removed reviews constituted personal data within the meaning of Article 4(1) GDPR because it related to an identified natural person. By storing and disclosing that information, the Controller processed personal data within the meaning of Article 4(2) GDPR. In assessing the accuracy of the notice under Article 5(1)(d) GDPR, the court considered how an average user would understand the information. It held that a prominently linked information page entitled "Defamation under German law" explained that the platform categorised not only false or reputation-damaging reviews, but also complaints alleging that the reviewer was not a genuine customer, as complaints concerning defamation. As the data subject did not dispute that he had successfully requested the removal of between six and ten reviews on the basis that the reviewers had not been genuine patients, the court concluded that users could readily understand the platform's use of the term and that the notice was factually accurate. The court also rejected the data subject's reliance on the Festzins Plus judgment (BGH, judgment of 21 September 2017 – I ZR 53/16), distinguishing that case because the corrective information there appeared only at the end of a lengthy and unclear text, whereas the notice in the present case contained a clearly highlighted hyperlink directing users to explanatory information specifically addressing the platform's categorisation of review removals. The court held that the Controller had legitimate interests in promoting transparency regarding its handling of review-removal requests and that publication of the notice was necessary for that purpose. These interests outweighed the data subject's rights because the notice related only to his professional activity, was presented in a factual manner, contained no criticism of his behavior and was not prominently displayed, appearing only after users selected the "Reviews" tab. Accordingly, the court concluded that the processing was lawful under Article 6(1)(f) GDPR and that the data subject was not entitled to erasure or an injunction preventing the future publication of the notice under Article 17(1) GDPR.
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Regarding the legality of a notice published on a review portal concerning a business listing indicating the number of reviews removed due to complaints. Judgment The applicant's immediate appeal against the decision of the 28th Civil Chamber of the Cologne Regional Court of May 20, 2026 – 28 O 158/26 – is dismissed with costs. The value of the appeal proceedings is set at €5,000. Reasons The immediate appeal, which was duly filed with the appellate court (§ 569 para. 1 sentence 1 of the German Code of Civil Procedure), and on which the Senate decides without conducting a remedial procedure (cf. Higher Regional Court of Dresden, decision of September 10, 2020 – 4 W 578/20, NJW-RR 2021, 59 para. 10; Zöller/Feskorn, German Code of Civil Procedure, 36th ed., § 572 para. 4), is unsuccessful. The Regional Court rightly dismissed the application for a preliminary injunction. The applicant is not entitled to the asserted claim for injunctive relief. In particular, it does not arise from Article 17(1) GDPR. ... 1. In cases of this kind, where a data subject – as evidenced by the application and the applicant's statement of grounds – seeks not only the deletion of their personal data published on a rating portal, but also an injunction against any future republication, Article 17(1) GDPR also gives rise to a right to an injunction (see Federal Court of Justice, judgment of 13 December 2022 – VI ZR 54/21, AfP 2023, 149 para. 40 with further references), the requirements for which are conclusively regulated in the provision and take precedence over national law (see Federal Court of Justice, judgment of 12 October 2021 – VI ZR 489/19, BGHZ 231, 263 para. 72 with further references). The applicability of Article 17(1) GDPR is not precluded in this case by Article 85(2) GDPR in conjunction with any applicable provisions of a Member State, because the data processing challenged in A. V.'s rating system is not carried out for journalistic purposes. The respondent does not meet the required level of substantive processing (see Federal Court of Justice, judgment of October 12, 2021 – VI ZR 489/19, BGHZ 231, 263, para. 19 et seq., concerning a doctor rating portal). This also applies to the automatically generated entries concerning the removal of reviews challenged by the applicant. 2. The number of reviews concerning the applicant's medical practice that were removed last year following a defamation complaint under German law, as reported by the respondent, constitutes personal data within the meaning of Article 4(1) GDPR. This is information relating to an identified natural person, namely the named applicant. The respondent processes this personal data by storing it and disclosing it to the users of its portal (Art. 4 No. 2 GDPR). 3. The applicant cannot demand the deletion of the data and the cessation of its future republication. None of the grounds listed in Art. 17 para. 1 GDPR apply. In particular, the data is not being processed unlawfully (Art. 17 para. 1 letter d GDPR). a) The data is factually correct (Art. 5 para. 1 letter d GDPR). The recipient can see from the information displayed in the application that six to ten reviews were removed "due to complaints of defamation" or "due to a complaint of defamation under German law." He will understand these statements to mean that the respondent deleted six to ten reviews based on complaints from the applicant and categorized the reasons cited by the applicant, on which he based his complaints, as "defamation." The recipient learns what the respondent means by "defamation" by clicking on the text "Further information on notices regarding the removal of reviews due to defamation in Germany." This leads to an informational text with a bold subheading "Defamation under German law" (Exhibit AS 7). In the paragraph following the subheading, "defamation" is defined as a false statement of fact or an unjustified expression of opinion that could damage a company's business reputation. It further states that in German courts, it is generally relatively easy for companies to challenge reviews as defamatory. In addition to proving that a review actually contains a defamatory statement, companies could also claim "that the person who wrote the review was not a customer." According to the Regional Court's accurate reasoning and considering the bold subheading, it follows unequivocally that the respondent views complaints from companies based on the claim that the reviewer was not a customer as "complaints of defamation." Based on this, the contested date is factually correct. The applicant does not deny having obtained the deletion of reviews concerning him from the respondent in six to ten cases during the twelve months prior to the publication of the contested notices, each time based on the objection that there had been no genuine patient contact. Contrary to the appellant's view, the contested notices displayed in the application do not permit the interpretation that the applicant expressly based his complaints on the accusation of defamation. Such an interpretation is far-fetched because the term "defamation" used in the notices is clearly a collective term, even without considering the linked information text. The respondent subsumes not just one, but six to ten reviews of the applicant and evidently also complaints from other affected parties under this term. The fact that, from the respondent's perspective, the use of the word "defamation" is not decisive is further clarified in the linked information text. The Federal Court of Justice's decision "Festzins Plus" (judgment of September 21, 2017 - I ZR 53/16, K&R 2018, 186), cited in the appeal, does not indicate that the linked information text should be disregarded when interpreting the notices challenged by the applicant. The decision concerns a violation of competition law that arose because an error caused by a misleading eye-catching advertisement was only rectified by a note at the end of a subsequent lengthy and confusing text whose connection to the eye-catching advertisement was not clarified. In the present case, however, there is no violation of competition law. Moreover, in the present case, the connection between the informational text and the notices challenged by the applicant is clearly evident to the recipient due to the link highlighted in bold. Finally, the informational text does not serve to rectify an error caused by the notices. Rather, the respondent uses the term "defamation" contained in the notices in a manner consistent with common usage. The applicant himself correctly assumes that the verb "defame" is used as a synonym for "devalue" or "severe someone's honor" (cf. duden.de/rechtschreibung/diffamieren). It is unclear why the average recipient should not perceive a baseless negative review, in which the applicant is unfairly criticized without any actual experience on the part of the reviewer, as derogatory, defamatory, and ultimately even libelous. German case law also recognizes that negative reviews of medical services on rating portals can be defamatory and—if the review is not based on any treatment contact—even libelous (see Federal Court of Justice, Judgment of March 1, 2016 – VI ZR 34/15, BGHZ 209, 139, para. 28, 36). Contrary to the appellant's view, the respondent's terms of service do not stipulate that complaints based on a denial of customer contact may not be classified as "complaints of defamation." The information text submitted as Exhibit AS 7, to which the appeal refers, is not the respondent's terms of use, which are available separately online. Moreover, it is unequivocally clear from the text that reviews are counted that were removed due to complaints of defamation or libelous statements under German law, and that this also includes complaints based on the fact that the reviewer was not a customer. The further statement that reviews "removed for other legal reasons or due to policy violations" are not included does not preclude reviews removed due to complaints of defamation from being counted even if the defamation also constitutes a policy violation. Moreover, the text clearly states that reviews "removed for other legal reasons or due to policy violations" are not included. b) Furthermore, the data processing in question is necessary to protect the legitimate interests of the respondent and the users of its portal, without the applicant's interests or fundamental rights and freedoms overriding those interests (Art. 6 para. 1 subpara. 1 letter f GDPR). The applicant rightly does not fundamentally dispute that the respondent may maintain an entry concerning his practice on A. V.'s platform and allow users of the service to rate the practice on its platform, even without his consent (cf. Federal Court of Justice judgment of June 13, 2024 – 15 U 91/23, juris para. 18; see also Federal Court of Justice judgment of December 13, 2022 – VI ZR 54/21, AfP 2023, 149 paras. 17 et seq. for a doctor rating portal). The legitimate interests pursued by the respondent in this respect extend to the notices attached to the published reviews by the respondent, which are challenged by the applicant. These notices inform users of A. V. that six to ten reviews concerning the applicant's medical practice were removed last year following a complaint of defamation under German law. According to the information text submitted as Exhibit AS 7, the respondent intends to ensure transparency in the processing of such requests, given the large number of requests for the removal of defamatory reviews. This objective must be recognized as a legitimate interest. The number of deleted reviews can certainly be of interest to the recipient when assessing the overall picture that emerges from the reviews submitted for a business listing and the stated average rating, and when making a comparison with other businesses or freelancers—especially those who generally never object to reviews concerning them. Furthermore, the notices regarding the removal of reviews inform users that the respondent responds to complaints when they appear justified in light of the relevant legal requirements. These notices are also necessary to achieve the transparency objective pursued by the respondent. The applicant's interests do not outweigh these considerations. It must be taken into account that the notices in question pertain only to his freelance work as a physician. In his professional capacity, a self-employed individual must expect his conduct to be observed by the wider public due to the impact his work has on others (see Federal Court of Justice, Judgment of December 13, 2022 - VI ZR 54/21, AfP 2023, 149, para. 22). Moreover, the notices in question are objective. They do not contain any criticism of the applicant's conduct. The notices are also not particularly highlighted in the applicant's business listing. In particular, they do not appear in the overview, but only when the user clicks on the "Reviews" tab. Therefore, contrary to the appellant's assertions, there can be no question of the applicant being exposed. 4. The decision on costs is based on Section 97 Paragraph 1 of the German Code of Civil Procedure (ZPO). A decision on the admissibility of an appeal on points of law is precluded by Section 574 Paragraph 1 Sentence 2 and Section 542 Paragraph 2 Sentence 1 of the German Code of Civil Procedure (ZPO). 4. The decision on costs is based on Section 97 Paragraph 1 of the German Code of Civil Procedure (ZPO). 5. In accordance with the constitutionally compliant reduction of Sections 936 and 922 of the German Code of Civil Procedure (ZPO), the respondent receives a copy of this decision for her information (see Federal Constitutional Court, decision of September 30, 2018 – 1 BvR 2421/17, NJW 2018, 3634, para. 36; Higher Regional Court of Munich, decisions of November 16, 2021 – 8 W 1541/21, juris para. 20 and of August 8, 2019 – 29 W 940/19, juris paras. 32 et seq.; Mantz/Löffel, WRP 2022, 1059, para. 27; Mantz, WRP 2022, 154, paras. 6 et seq.; Zöller/Vollkommer, ZPO, 36th ed., Section 922). Paragraph 18; Becker in Anders/Gehle, ZPO, 83rd edition, § 922 paragraph 48). Regarding the further contents of the file, she is advised to submit a request for access to the file.