Encrochat: Constitutional complaint failed
1. August 2025
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September 26, 2022 /
The hoped-for relaxation for your own summer vacation no longer starts at the travel agency, but increasingly from the comfort of your sofa on the Internet. The term “book vacation” alone has around 165,000 search queries per month. In most cases, you end up on one of the established travel portal websites.
One of the most decisive factors for the final decision to book is increasingly the reviews of hotel guests. It is therefore important that these reviews are written by real guests who have actually stayed at the hotel. There are studies across the industry that suggest that 40% of all reviews are probably fake. This is problematic for hotel operators, as it is difficult to determine whether an anonymized or pseudonymized review is a real hotel guest.
Following a complaint by a vacation park operator on the Baltic Sea, the BGH has now ruled that travel portals are obliged to delete untrue reviews if a hotel complains about a non-existent guest contact. The mere assertion that the author of the comment was not a guest of the hotel is sufficient. This means that the portal has a so-called secondary burden of proof , i.e. it must clarify whether the author was actually a guest at the accommodation. If this is not possible or if the platform cannot comply with the request in any other way, the “lack of guest contact must be assumed to be true and the review is therefore unlawful. The portal is liable as an indirect disturber and the hotel can demand an injunction.
“A hotel only has to provide a more detailed explanation as to why an author was not a guest if the identity of the author is readily apparent from the review. Information that merely indicates guest contact is not sufficient. This is because the hotel is regularly unable to verify this” (judgment of 09.08.2022, case no. VI ZR 1244/20).
The BGH ruling was preceded by some very contradictory rulings from Cologne. Initially, the regional court dismissed the claim as the reviews were too precise to be falsified. Specifically, a certain apartment complex was mentioned, as well as a certain room in which there were stains on the furniture, which speaks for the authenticity of the reviews.
The Cologne Higher Regional Court was of the opinion that the portal should nevertheless have contacted the authors in order to verify the reviews. Although it was unlikely that the reviews were fake, it was still possible. It was not clear who the creator of the photos attached to the reviews was.
There is also no general obligation to check every published review. However, if the portal is notified of a “clear violation of the law” by a hotel, this triggers an obligation to check. If the author was not a hotel guest, this may trigger an obligation to check. However, it must be assessed on a case-by-case basis whether an obligation to check arises. The hotel must be able to provide concrete evidence that no guest relationship can be proven and why. It must also be ensured that the circumstances described in the review are not too precise to be falsified, which would make the hotel’s claim appear implausible. For example, complaints that “cannot be made up without further ado” would be evidence of a guest relationship.
According to some lawyers, the ruling could therefore not only be groundbreaking for booking portals, but also for all industries where it is possible to leave a review, as the problem of anonymous or pseudonymized reviews exists almost everywhere.
Sources:
Rating portal must check posts (tagesschau.de, last accessed on 26.09.2022)
BGH: Reiseportal muss Echtheit von Hotel-Bewertungen überprüfen (br.de; last accessed on 26.09.2022)
Reiseportal muss Echtheit von Hotel-Bewertungen überprüfen (zeit.de; last accessed on 26.09.2022)
Review portal must verify the authenticity of online reviews (wbs-law.de; last accessed on 26.09.2022)
Travel portal must verify the authenticity of hotel reviews (rsw.beck.de; last accessed on 26.09.2022)
Review portal must provide proof of guest contact (lto.de; last accessed on 26.09.2022)
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