http://ipkitten.blogspot.com/2019/11/amsterdam-district-court-orders-google.html
The issue has come up repeatedly before German courts and the German Bundesgerichtshof has assessed it within the safe harbour framework of the E-commerce directive [e.g. here, at 31]. But to this Kat’s knowledge, this is the first such decision in the Netherlands.
The decision
The plaintiff in the case was a local tailor in Amsterdam. On 7 April 2019, a negative review appeared complaining that the tailor had not done a good job on tailoring a wedding dress and had been rude to the customer. On five more occasions in April and four in August and October, more negative reviews appeared. The tailor, suspecting foul play, requested Google to take them down, but Google refused.
The district court granted the tailor’s claims and ordered Google not just to remove the reviews, but also to provide the tailor with the authors’ IP addresses, names, e-mail accounts, phone numbers and other information that could help identify them.
Crucially, the district court established that all or at least most of the reviews shared the following characteristics (par. 4.3):
(i) the reviews were written in the English language; (ii) they were written by Google-users which, in total, have placed only one or two reviews; (iii) none of the names are familiar to the tailor and the identity of these users cannot be traced through the internet; (iv) the reviews refer to the Google Reviews tool and other reviews remarkably often; (v) the reviews are almost always directed towards the owner’s person; (v) the reviews every time address “the owner”; (vii) the reviews warn others not to go to the tailor; (viii) the reviews address “bad quality” and “bad services”; (ix) the reviews address the tailor in pejorative terms (“he is just the owner of a tailoring store […]”, “all you are is just a tailor”).
According to the court, this “very specific combination of identifying data justifies the preliminary assumption that the reviews were written by the same person or persons“.
Furthermore, some of the reviews were written under obviously fake names – apparently corresponding to the names of the French electronic music duo Daft Punk – and one referred to a wedding dress that was made by the tailor, even though that service was discontinued in October 2018. And in the years prior to the first review on 7 April, the tailor had received only three negative reviews.
The district court concluded that these findings support the assumption that the reviews were written by the same person or group of persons wanting to take revenge on the owner. Thus, the district court assumed that the reviews did not describe actual events, but were intended primarily to hurt the tailor’s repute. They were therefore considered defamatory and unlawful.
The district court proceeded to weigh the interests of the parties. It found that the tailor had a strong interest in removal of the reviews and in identifying the authors so as to take legal action against them. This interest was held to outweigh the reviewers’ interest in anonymity in the circumstances of the case, as well as Google’s interests in remaining as neutral as possible as a review platform. The district court rejected Google’s suggestion that this would have a chilling effect for writing negative reviews, as the decision was based not on the fact that the reviews were negative but that they were fake.
When it came to the removal of the reviews, the district court made an important observation which is also worth quoting in full:
[C]aution is necessary in light of the fundamental right of freedom of expression, also on the part of the anonymous users, and the fact that the Google services perform a facilitating role in the dissemination of information on the internet. But also here the protection of the reputation and good name of the tailor should be given more weight that the freedom of Google users to place fake reviews and the public’s ability to access them
Consequently, the requested relief was granted.
| Cosimo and Lucrezia are hoping for a good review (Source: author’s cats) |
However, it is important to heed the district court’s warning that “caution is necessary” in cases where a takedown of negative reviews is requested. It will not always be easy to determine when a review is “fake”, since reviews by their nature are subjective. On the one hand, reviewers must be able to express frustration over bad service, even if it is strongly worded; on the other, there must also be some protection for reviewed businesses against gross exaggerations. It seems likely that principles developed in defamation law will inform this balancing exercise.
In this case, three elements seems to have contributed substantially to the outcome: (a) the reviews were written by fake persons and relate to fake events; (b) the reviews were intended to damage the owner out of spite; and (c) the reviews showed structural similarities and together formed a pattern. On these facts, this Kat is happy with the outcome of the decision, but it is interesting to think to what extent each of them is necessary and sufficient to warrant removal of a review.
As for (a), the fact that the review were written by “fake” persons should not, by itself, be dispositive. In fact, one might argue that it would be prudent to use a pseudonym on the internet, especially when commenting on a platform as public as Google. On the other hand, the fact that the reviews appeared to relate to non-existent transactions, in my view rightly, received a lot of weight. Then again, how is Google to disprove a business holder’s allegation that the names of the clients are not familiar to them and that the relevant transaction never took place? Furthermore, the first review of 7 April seems to also be affected by the order (though this is not clear as the decision is anonymized), but that review related to an actual customer experience.
Element (b) seems tantamount to finding bad faith on the part of the reviewers. Indeed, writing a negative review about a non-existent transaction almost by definition seems to be done with intent to harm the business. The interesting question is if a bad faith requirement would be applied to reviews about real transactions. That is, would removal of those reviews only be warranted if an intent to harm the business can be established?
Element (c) perhaps supports a finding of bad faith in the present case, but this Kat feels it should be particularly cautiously applied in future cases. After all, it might be tempting for business owners to argue that many of their negative reviews fit the abusive pattern and here, too, Google might not be in a good position to argue otherwise. In fact, in the present case two reviews fell under the scope of the order that did not really seem to fit the pattern and lacked various elements listed by the court in par. 4.3. One of these actually complimented the tailor’s service, but complained he was too expensive (“Go this place only if you want to burn extra cash as the owner did provide very nice service”); another was so vague that it wasn’t even clear what the user was trying to say (“… seems like the kind of guy who would tell on you if he catches you cheating in class. regards TB”).
Lastly, an interesting question is whether the decision provides a basis for a business’ competitors to challenge fake positive reviews [support for this hypothesis might be found in a 2018 decision by the court of Lecce, which jailed a man for selling fake reviews on TripAdvisor, see here] Again, due to the prominence of Google’s search and review services, these may give a business an important competitive advantage, but the intention to harm competitors will be much less direct. All in all, the decision offers much to digest and even more to look forward to.
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