Damage to reputation vs. freedom of opinion - What can be done against bad reviews on the Internet under Austrian law?
When is a negative company review in Austria to be classified as unlawful?
Reviews are unlawful if they are no longer covered by the fundamental right to free expression of opinion, but claim untrue or defamatory facts or contain a derogatory, defamatory value judgment within the meaning of Section 1330 of the General Civil Code or a criminal offence (such as slander in accordance with Section 111 of the Criminal Code) is fulfilled. Examples of statements made on review platforms or in forums that have been assessed by courts as defamation of character or damage to reputation are “corrupt oaf”, “The worst publican in Austria - Unfriendly, expensive, zero service, zero motivation” or “bankrupt”. Furthermore, reviews may contravene competition law, data protection law and media law provisions.
What measures can be taken against unlawful reviews?
In principle, a company has a claim to injunction, elimination or deletion, compensation for damages and revocation if false (professionally damaging) facts are asserted in a review, or they contain a defamatory value judgement or were unlawfully published by a competitor. As a first step, it is often advisable to assert these claims against the author of the review (if known) and/or the operator of the review platform by means of a letter of request. If they do not respond satisfactorily, these claims can be enforced in court by means of a complaint and an application for the issuance of a temporary injunction. In addition, criminal or data protection measures may be taken, among other things. The package of legislation against “hate on the Internet”, which was published on 1 January 2021, provides for various measures to combat hate on the Internet. Accordingly, an employer can now also assert a claim for injunctive relief and elimination if an employee’s reputation is harmed by assertions in a review.
Can you buy positive fake reviews as a company?
Reviews that are written for a fee, although no experience exists at all with the evaluated products or services, are considered as unfair. Accordingly, the purchase of positive fake reviews by an entrepreneur represents an act of unfair competition and contravenes the UWG (Gesetz gegen den unlauteren Wettbewerb [Law on Unfair Competition]). Moreover, an author of reviews who writes his/her reviews on the basis of experience but in exchange for a non-cash benefit must point out the commercial background of his/her actions; otherwise, the review is to be regarded as misleading in the sense of the UWG.
Autor: Julia Spitzbart