On 11 March 2025, the Federal Court of Justice (BGH, Ref.: VI ZB 79/23) ruled on whether and under what conditions operators of online review platforms can be obliged to disclose the identity of anonymous users if a company considers its rights to have been infringed by a review. The underlying legal dispute concerned an employer review platform on which a user had rated a law firm with only one star in the „superior behaviour“ category. This review contained harsh language, including criticism that former employees had only received their outstanding salaries or employment references after legal action had been taken. The law firm then sought a court order requiring the platform to disclose the identity of the user who had posted the review so that it could take legal action against him. As the basis for this claim to information, the law firm referred to Section 21 (2) of the Telecommunications Digital Services Data Protection Act (TDDDG). According to this, platform operators may be obliged to disclose inventory data under certain conditions if the content is relevant under criminal law.
The Federal Court of Justice denied the law firm's right to information, thereby confirming the decisions of the lower courts. In the court's opinion, there was no „illegal content“ within the meaning of the relevant provision that would trigger an obligation to provide information. The decisive factor here was the distinction between statements of fact and value judgements: a criminal statement of fact requires that a statement be verifiable and provable and that it fulfils the elements of one of the criminal offences listed in Section 21 (2) TDDDG, such as insult, defamation or libel. The Federal Court of Justice found that the contested review in the present case could not be qualified as an objectively verifiable, factual statement, but rather as a subjective expression of opinion with a value judgement character. Insofar as it contained factual elements, these were inseparably linked to the evaluative impression that the user wanted to convey. In cases of ambiguous statements, the Federal Court of Justice ruled that, in case of doubt, the decision should be made in favour of freedom of expression.
With this decision, the Federal Court of Justice has set the legal standards for determining when an operator of a digital platform is obliged to disclose a user's personal data. The court has made it clear that mere defamatory or subjective criticism alone is not sufficient to trigger an obligation to provide information. Only if there is clearly criminal content that fulfils the criteria set out in Section 21(2) of the TDDDG can the platform operator be obliged to disclose inventory data. As is usually the case, whether there is an obligation to disclose information is a question that must be decided on a case-by-case basis.
In the past, the Federal Court of Justice (BGH) has already ruled that operators of review platforms are not obliged to delete content every time a complaint is made about defamatory content. With the current ruling, the BGH extends this case law to the identity of users. Their anonymity when rating companies is generally paramount, as long as the statements do not constitute any of the criminal offences listed in Section 21 (2) TDDDG. At the same time, the ruling also means that platform operators must establish legal review processes to assess complaints on a case-by-case basis to determine whether a review contains content that is relevant under criminal law. Operators should therefore, in their own interest, establish internal
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