Comments in social media the limits of freedom of opinion

Comments in social media - The limits of freedom of speech

There are many rating portals and not all are anonymous. Some are specialized like Jameda.de on doctor reviews, others are thematically open like for example Yelp.en. © Stiftung Warentest / Rene Reichelt

Whether on social media or rating portals – if you criticize others on the net, you have to follow rules. Our etiquette guide for online criticism explains when comments in social media can cost you your job and where the right to freedom of expression ends when it comes to reviews of doctors, stores or restaurants.

  1. Overview

Getting rid of one’s own anger anonymously – that is tempting

Have you ever been upset with your boss and would have liked to tell her what you think?? Rating portals and social media platforms on the Internet seem to be just the thing for this. Not only the nasty superior, also an insensitive physician or simply a bad restaurant can be criticized there – that goes on evaluation portals often even anonymously.

The Internet is not a law-free space

Negative comments and ratings are often based on emotions such as anger, disappointment or the feeling of having been treated unfairly. Customers, patients and employees should nevertheless not simply let out their anger on the Net. The Internet is not a law-free space. The same rules apply as in real life – for example, when getting into trouble on the road. Anyone who goes overboard when criticizing, spreads lies or insults others, makes himself legally attackable.

Comments in social media - the limits of freedom of opinion

Entertaining, but nonsensical: These employer evaluations are not constructive.
Source: Kununu.en© Stiftung Warentest / Rene Reichelt

Our advice

Freedom of expression has limits

The right to freedom of expression is enshrined in Article 5 of the Basic Law. Everyone is allowed to express their opinion – even on the Internet. In principle, it is therefore also permissible to make exaggerated statements such as "In my opinion, the products are cheap junk" or "Customer service is apparently there to alienate customers. However, insults, slander and false statements of fact are not protected.

Social control is missing on the net

Scientists have observed that the inhibition threshold for such borderline statements is lower on the Internet than in real life. Wolfgang Schweiger, Professor of Online Communication at the University of Hohenheim in Stuttgart, says: "Social control is lacking on the Internet due to anonymity. This usually prevents people in direct contact with each other from insulting or threatening each other, for example."

Independent. Objective. Incorruptible.

Caution with factual assertions

But it is not only extreme cases such as insults or slander that can have legal consequences. There are traps even with seemingly harmless criticism. Especially when critics claim facts in a light-footed manner. These are attackable if the person cannot prove them or if the content is simply false.

Example: "The pizza tasted a bit bland to me" is an expression of opinion and is permitted. But if it becomes "The restaurant serves frozen pizza," it is an untrue statement of fact if the pizza is homemade.

The line between opinion and assertion often runs through gray areas. What is permissible therefore depends strongly on the individual case. Critics should therefore play it safe and not write anything that they cannot prove. Those who spread lies quickly risk their anonymity. Evaluation portals may also have to hand over user data.

Unfair assertions become expensive

If the author of an untrue statement of fact is lucky, the portal simply deletes it. The spreading of a lie does not end so glimpf-lich, if the concerning takes legal action against the author. Alexander Bredereck, specialist attorney for labor law, says: "The addressee can demand deletion and omission. The lawyers can claim the costs for this from the author of the statement. It gets really expensive when it comes to a lawsuit."If the person being rated has demonstrably suffered financial damage as a result of an untrue statement of fact, he or she could even claim compensation for this. This is the case, for example, when an untrue statement demonstrably causes a business to miss out on customers and thus reduce sales.

Content can even become punishable

Even worse than the assertion of false facts is the dissemination of punishable content. For example, anyone who insults or defames others is liable to prosecution.

Example: In North Rhine-Westphalia, a trainee had called his employer in the IT sector a "human abuser" and an "exploiter" on Facebook. His boss then dismissed him without notice, against which the apprentice filed a lawsuit. The Hamm Regional Labor Court not only considered the termination without notice to be justified, but also considered the offense of insult to be fulfilled. And this, although the trainee did not even mention his company by name, but only spoke of his "employer" (Az. 3 Sa 644/12).

Whoever commits such criminal acts violates the honor of another person. These are so-called application offenses: only if the victim files a criminal complaint will criminal proceedings be taken against the accused.

"Neck-cutter" is not permissible

The gross insult to the employer also constitutes a violation of the employee’s duties and justifies an extraordinary termination without notice. Employees are entitled to express criticism of their employer, under certain circumstances even in an exaggerated manner. But rough vituperative attacks, insults or lies a boss does not have to accept. The Federal Court of Justice, for example, judged the term "neck-cutter" for an entrepreneur in a trade union newspaper to be defamatory criticism and thus unacceptable (Az. VI ZR 204/74). We speak of defamatory criticism when it is no longer about a dispute in a matter, but only about ridiculing or insulting someone. The courts, on the other hand, have so far considered the terms "dumb-twit," "moron" and "left-wing bastard" to be permissible.

Annoyance in the small circle goes

It is also important how many people can hear or read a statement. The trainee from Bochum had, for example, left the information about his workplace on Facebook as public profile information for everyone to see. In general, the freedom of expression in a "protected space" – such as in a chat or a closed Facebook group – is valued more highly than that on an Internet pinboard or in publicly designed profile information.

How long was the criticism to be read?

It can also be decisive over which period of time an insulting statement is to be read. The apprentice had left its data several months publicly observably. In the opinion of the court, it is therefore no longer possible to speak of an "eye-witnessed, albeit vehemently exaggerated expression of displeasure".

Watch out for employer evaluations

Specialized evaluation portals offer employees the possibility of anonymously evaluating their employer, for example by means of a rating system Kununu.de. Bosses may not prohibit that.

Employees should be very careful with the evaluation however, because special rules apply. You may not, for example, betray company secrets or violate duties of loyalty. Labor lawyer Bredereck recommends restraint: "The understanding of loyalty in Germany is very broad, only a little of the company’s business may be carried to the outside. If you want to evaluate your employer, you should only do so anonymously."Who offends against these rules, can be admonished. In the case of particularly drastic breaches of duty, there is even the threat of termination without notice.

Example: Among other things, the Rhineland-Palatinate Regional Labor Court considered supplier data that an employee had passed on to third parties to be a trade secret. He should not have done that, the court found, and declared the termination without notice to be justified (Az. 6 Sa 278/11).

The motto: Constructive and objective

The basic rule is: no one need worry about just criticism. It is important that it remains fair, factual and constructive. Fair is for example a suggestion for improvement like "I think the decoration could be a bit more modern", but not a nasty comment like "stuffy restaurant with old-fashioned decoration".

Criticism must not be aimed at harming the other person or seeking revenge.

This is how criticism works

Rating portal must be neutral

Legal disputes have repeatedly arisen over the role of the rating portals. The physician evaluation portal Jameda was able to enforce before the Federal Court of Justice (BGH) that doctors may be listed and evaluated against their will (BGH, Az. VI ZR 358/13). The Federal Court of Justice assigns the role of neutral information mediators to evaluation portals. Only when a portal leaves this neutral role can a doctor defend himself against his profile. This was done by a doctor in whose free profile Jameda inserted advertising for another doctor who paid for it (BGH, Ref. VI ZR 30/17).

Also portals like Yelp – where customers rate hotels or restaurants, for example – auto-matize posts as "recommended" or "not recommended. That decided in January 2020 the BGH. A fitness studio operator had sued because she found the classification arbitrary (Az. VI ZR 496/18).

Portal does not have to delete criticism

The portal Jameda does not have to delete a negative evaluation -based on facts -. This was recently decided by the Higher Regional Court in Frankfurt am Main. The operators had appealed after the lower court ruling of the Hanau Regional Court. -An ophthalmologist had sued. They -requested to remove the critical comment and to name the author or to delete their practice data. From the point of view of the judges, this does not violate the doctor’s personal rights. The expression of opinion is based on a visit to the practice. The portal fulfills a socially desirable function by providing neutral information about physicians. An appeal was allowed (Az. 16 U 218/18).

Rate doctors and stay fair

Fair should remain also patients, who evaluate their physicians. However, they may call a doctor by name. However, this only applies if it is specifically about this person – and not about his employees.

Experiences may not be generalized. If a doctor had only little time for a certain examination, it must not be said: "Doctor Meier does not take time for her patients." That would be an assertion of false facts – and not a fair criticism.

How to deal skillfully with unfair criticism

If you have to deal with other people professionally, you quickly become the object of an evaluation yourself. In principle, traders must accept criticism of their services (BGH, Az. VI ZR 496/18). But especially when the criticism seems mean and unfair, dealing with it is not always easy. Our tips:

Sometimes nasty criticism hides suggestions for improvement. It can be worthwhile to consider how they can be implemented. React instead of ignore. Some portals, such as Kununu, offer the possibility to respond to reviews. Well countered, an unfair comment is quickly invalidated. Do not tolerate untrue statements of fact. If lies are spread on the Internet, first contact the portal and point out that the content does not correspond to the truth. If that brings nothing, a lawyer can help you. They do not have to put up with punishable contents. Insults for example must accept nobody. You can report criminal content to the police. Do not take it too much to heart. Opinions on the Internet often diverge. If someone simply wants to get upset about you, he will do so for no reason at all.

This special was published on 17. March 2020 fully updated. Older user comments refer to an earlier version.

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