Anyone who is upset after a transaction via the Ebay Internet platform may soon be able to formulate their criticism with harsh words, with legal protection. It should then only not cross the line of abusive criticism and would have to have a factual connection. This was indicated at a hearing at the Federal Court of Justice (BGH) in Karlsruhe. The court will announce the verdict at 2 p.m. (Ref. VIII ZR 319/20)
In this case, a man bought four hinge pin clamps from a Bavarian company on Ebay. Of the 19.26 euros paid, 4.90 euros were shipping costs. After receiving the products, he wrote the following as a review in the review profile: “Good goods, exorbitant shipping costs!!”
Ebay’s General Terms and Conditions (GTC) state the following on the subject of ratings: “Users are obliged to only provide truthful information in the ratings submitted. The ratings submitted by users must be factual and may not contain any abusive criticism.” This is what statements are called that are not about the matter at hand, but rather that the degradation is in the foreground. Both sides had agreed to the terms and conditions.
The wording of the terms and conditions offers room for interpretation
The wording of the terms and conditions is not clear, said the presiding judge of the eighth civil senate at the BGH, Rhona Fetzer. Several interpretations are possible. And the far-reaching fundamental right to freedom of expression is affected.
This is where BGH lawyer Thomas Kofler, who represents the customer, came in. Terms and conditions should not restrict freedom of expression, he said. Any potential buyer could easily check how high the shipping costs are. The representative of the other side, Brunhilde Ackermann, aimed at the choice of words: “”Usury” is already a sharp artillery.” There is no factual reference there. The customer knew the shipping costs from the start and closed the deal.
Seller requests removal of comment
The seller, Schlauchland GmbH, considers the rating to be inadmissible and wants the “usury” comment to be removed. The district court in Weiden in der Oberpfalz had rejected that. The evaluation is related to the shipping costs. The district court in Weiden, on the other hand, decided in the appeal process that it was an exaggerated assessment without any factual reference, because an objective reader could not see why the shipping costs should be “usury”. The buyer appealed against the verdict.
From the point of view of lawyer Sebastian Lehr, who represented the company in Weiden, it is a kind of precedent, “because the legal question has to be clarified to what extent the submission of a negative rating can represent a breach of secondary contractual obligations”. According to the lawyer, such ratings are a major annoyance for almost all online trade. Many customers trusted the ratings of previous buyers. This is sometimes more important than the reputation of a brand or a company.
Unjustified negative ratings are therefore significantly damaging to business, emphasized Lehr. The financial damage cannot be estimated because it is unclear how many potential customers can be deterred in this way. Negative reviews are no exception. “Unfortunately, this happens again and again.” According to him, it is also not uncommon for customers to intentionally threaten negative comments in order to enforce price reductions or the return of goods after the cancellation period has expired.
