NO CARTE BLANCHE: PORTAL OPERATOR LIABLE IN NEGATIVE DOCTORS' RATING
If a doctor's appraisal portal independently changes users' ratings, the operator is liable for the content, a federal court has now ruled.
KARLSRUHE. If the operator of an appraisal portal independently changes a rating to a complaint and rejects any further changes, then the views become its own. This is the decision of the federal court in Karlsruhe in relation to a hospital ratings portal. Accordingly, the portal operator is then itself liable as the offender and an injunction can be taken out against it directly (we reported briefly on this).
In this specific case, the hospital was an ENT and laser surgery facility in Frankfurt am Main. A patient had undergone nasal septum surgery there and was then transferred to another hospital. On a ratings portal for hospitals, the patient submitted an experience report 36 hours after his operation for the hospital in Frankfurt. In it, he stated that he had developed septic complications "during" the standard procedure. The hospital staff had been overwhelmed by the "life-threatening emergency", which had almost resulted in the patient's death.
Clinical history: Incorrect medical facts
The hospital complained to the ratings portal, saying that the report was based on incorrect medical facts. The ratings portal then changed the experience report itself without discussing it any further with the patient. In one place, part of a sentence was deleted while in another something was added. The portal operator notified the hospital of this and stated that "further interventions" were not indicated. The hospital did not agree with this however, and sought an injunction. As previously before the regional court and the higher regional court in Frankfurt am Main, the hospital has now also been successful before the federal court.
The federal court initially determined that the operator of the ratings portal is the correct defendant. It "has made the disputed views its own, making it liable as the direct offender." It had checked the content of the patient's views and modified them independently without any feedback. It had also decided by itself which views would be retained. It had also communicated this to the hospital.
"In our objective view based on the overall consideration of all circumstances, the defendant (portal operator) has therefore assumed responsibility for the content of the disputed views", explained the Karlsruhe judges. As a consequence, the patient is excluded from the issue of liability and injunction.
In terms of content, this is "about untrue statements of fact and expressions of opinions based on incorrect information and with incorrect facts at their core." The right to freedom of opinion must therefore take second place to the rights of the hospital. Therefore the federal supreme court also granted the injunction. Whether and to what extent the portal operator must also assume liability if the hospital is able to demonstrate lost income as a result of the views expressed is not up to the federal supreme court to decide.
No fundamental liability
Initially, the operators of ratings portals however are not responsible for the views of their users. <link http: www.aerztezeitung.de praxis_wirtschaft internet_co article>They also, it is reported, are not obliged to reveal the names of the users, as decreed in a decision by the federal supreme court in 2016 regarding the doctors' evaluation portal Jameda (ref. no.:s VI ZR 34/15). The portal must however investigate complaints from affected doctors. If necessary, it must ask the user to provide proof that he actually received treatment from the practice in question.
Federal supreme court; ref. no.: VI ZR 123/16
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