Is negative review fair
Problem area of negative reviews - a FAQ
To be on the legally safe side on eBay, you only need to know a few basic decisions. Not more but also not less. In addition, of course, it doesn't hurt to deal with a few more specific legal questions relating to eBay if you are interested. In order to provide effective assistance here, the problem of the. Is explained below through a simple * "question and answer game" * and the linking of the underlying judgments "negative reviews" Legally illuminated in more detail:
Question No. 1: Can eBay cancel the membership of an eBay seller on the grounds that they have now collected "too many negative reviews"?
Yes, eBay would not even need to refer to the large number of "negative reviews" as a reason for termination in the context of an ordinary termination - at least that is the reasoning of the Brandenburg Higher Regional Court.
Rather, on the basis of the General Terms and Conditions (BI. 203 d.A.) that have been in effect on May 31, 2003, eBay is entitled to terminate the user contract with any ebay member at any time with a notice period of fourteen days to the end of the month.
Annotation: The Brandenburg Higher Regional Court grants eBay an ordinary right of termination at any time to its members - this would result from eBay's own terms and conditions. This would not change in view of the fact that eBay can now be classified as the so-called market leader in Germany. The OLG justified this as follows: “The principle of freedom of conclusion also applies to the defendant (ie eBay) - regardless of their market position. There is no direct connection obligation. As an online marketplace, the defendant does not belong to the group of services of general interest for which the obligation to take out a contract is partially regulated by law. An indirect obligation to join cannot be accepted either.
*See. judgment of the Brandenburg Higher Regional Court, dated May 18, 2005, Az. 7 U 169/04 *
Question No. 2: A buyer is disappointed with the eBay seller's service and gives the following negative rating:
* "Well, I and a friend definitely wouldn't buy anything here, sorry !!".
In this case, does the eBay seller have the right to have the rating deleted? *
Yes. At least the AG Erlangen granted the eBay seller a right to the buyer's consent to withdraw his negative evaluation according to §§ 280, 241 Abs. 2 BGB.
This on the grounds that poor service justifies a negative rating. This then also had to refer specifically to the content of the allegation made (suggestion by the court of a corresponding assessment: "unfriendly"). However, the formulation quoted above is kept so abstract that there is room for any possible interpretation - e.g. B. that bad goods would have been sent to even assumed quasi-fraudulent behavior, from the point of view of the objective eBay user.
Arguments of the AG Erlangen in detail: The negative evaluation, which was not objectively justified in the opinion of the court, constituted a breach of ancillary obligations. By registering as eBay users, both parties would have submitted to both the general terms and conditions of eBay and the general usage behavior resulting from their dealings with eBay. The submission of ratings after a transaction has taken place is a significant feature of the eBay Internet platform, as this represents an important means of information about the otherwise intangible contractual partner. The evaluation consisted of a positive-neutral-negative evaluation and a brief evaluation comment. Based on this assessment, the reliability of the trading partner can be read, whose reputation essentially depends on it. However, the defendant violated this. The behavior and the perceived friendliness / non-friendliness of the contractual partner, in this case the plaintiff as the provider, is an important assessment criterion. Certainly, as a service, the seller could have made her data available to the buyer immediately in response to the buyer's email, without referring to the data stored on eBay. The court cannot attack that this can be accompanied by a negative evaluation, as it is unfriendly from the bidder's point of view. However, this is only one aspect. As mentioned, the evaluation also consists of a comment that contains a description of the content of the evaluation and should therefore be fair and factual, which is not the case in the present case. The comment "Well, I and a friend would definitely not buy anything here, sorry !!" is kept so general and leaves room for almost every possible interpretation. B. that bad goods would have been sent to even assumed quasi-fraudulent behavior, from the point of view of the objective eBay user. This disputed evaluation has nothing in common with the factual evaluation required on eBay, as there is no reference to the transaction and the problems associated with it. The assessment alone is derogatory without any objective justification or reference - an "unfriendly" after a dash would have sufficed - so that the plaintiff has the right to be removed from her assessment profile.
Question No. 3: A buyer received a camera that was declared “new”, but it showed signs of use. He then gave the following negative rating:
* ”Complaint: Never again! I didn't expect anything like that with over 500 points! Guess !! "
In this case, does the eBay seller have the right to have the rating deleted? *
No. In any case, the Koblenz District Court did not consider any violation of civil law norms in the negative assessment. There is no disregard or disregard for the seller in the evaluation. It is still a matter of abusive criticism, which would mean an intervention in the seller's business.
Background: The Koblenz District Court justified this in detail as follows:
- No disregard or disregard within the meaning of § 823 II BGB in conjunction with §§ 185 ff StGB. A statement expresses disregard or disregard if it denies the person concerned the elementary human value or his ethical or social value in whole or in part and thereby violates his fundamentally unrestricted right to respect. On the other hand, the content of the assessment would have been that the buyer was disappointed with the course of business and for that reason no longer wanted to do business with the seller and could not advise third parties to do so. However, it is not inferred from this statement that the buyer is denying the seller his elementary human value or his ethical or social value in whole or in part and thereby violating his fundamentally unrestricted right to respect. Even if the saying “... I did not expect something like this ...” is taken as a value judgment, it is not suitable to violate the seller's claim to respect.
- No interference in the established and exercised commercial enterprise. Unobjective abuse criticism could lead to a violation of the established and operated business. But there is no improper criticism here. Such an intervention must also be goal-oriented and purposeful in the sense that the intention is to damage the business. The company-related interference is an impairment of the commercial enterprise as such, it must be directed specifically against the company organism or entrepreneurial freedom and go beyond mere nuisance or social disability. The fact that someone speaks negatively about a trader or a company does not go beyond a socially common disability. The buyer's comment therefore does not constitute an operation-related intervention.
- No violation of § 6 of the eBay Terms and Conditions. The negative rating also does not constitute a violation of § 6 of the eBay Terms and Conditions. It states: “The member is obliged to provide only truthful information in the ratings submitted and to comply with the statutory provisions. The ratings submitted by the members must be factual and not contain any defamatory criticism. " However, the buyer did not violate any statutory provisions. In addition, its negative evaluation is kept factual. In the eBay forum, objectivity could not depend on the fact that a comment is justified. On the one hand, this would be supported by the fact that the comments would have been submitted under the heading “Evaluation profiles”. However, the term “rating” already implies that the comments submitted are ratings by the commentator. If only such comments were to be classified as factual that are also fully justified, only those comments would be permitted that describe the exact course of the transaction. Only on the basis of this description could a third party judge for himself whether the transaction was correct in his opinion or whether he did not want to do business with the rated provider. However, this is not possible due to the limited length of the comments (80 characters). From this it follows, and this is also recognizable for everyone, that the comments in the rating profile are merely subjective opinions.
*See. judgment of the AG Koblenz of April 2nd, 2004, Az. 142 C 330/04 *
No, at least not according to the Koblenz District Court.
The customer must be able to trust that the terms and conditions are within the scope of what can be expected when considering all the circumstances in contracts of this type. In the present case, however, it is an objectively unusual clause. The eBay buyer does not have to expect that the terms and conditions of an eBay seller stipulate how he should structure his comment on the eBay rating forum.
Note: In the specific case to be decided by the Koblenz AG, the clause also had a surprise effect, as the provision was contained in a 4-paragraph paragraph and not highlighted in the printing process. See judgment of the AG Koblenz of April 2nd, 2004, Az. 142 C 330/04
tip: Do you have any questions about the contribution? Feel free to discuss this with us in the entrepreneur group of the IT law firm on Facebook.
S. Hofschlaeger / PIXELIO
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