Negative eBay feedback

The buyer purchased four wooden discs for joints from the seller via the eBay platform. The price for the wooden discs was €19.26. The additional shipping costs were €4.00. The parties entered into the contractual relationship subject to eBay Germany’s General Terms and Conditions (GTC).  eBay’s GTC contained the following clause relevant for the subsequent feedback posted:

"Users are required to provide only truthful information in the feedback posted. Feedback posted by users must be objective and must not contain abusive criticism."

After the purchase was completed, the buyer left the following feedback on the seller’s user profile.

"Goods good, shipping costs usury!"

The seller  contends that the "shipping costs usury" part of the feedback is inadmissible and brought an action to remove the feedback. The local court (Amtsgericht) initially dismissed the action. In its judgment, it pointed out that a value judgment is only inadmissible where it involves abusive criticism. Abusive criticism includes the special feature that the statement has no objective connecting factor. Criticism is therefore only abusive if the statement does not serve the purpose of an objective discussion and is made for the purpose of vilification and defamation. The local court rejected the assumption of abusive criticism with regard to the mentioning of the shipping costs in question, as this contained a sufficient objective reference.
Whereas the competent local court dismissed the action under the aspect of an admissible value judgment, the regional court granted the application for injunctive relief referring to the breach of a secondary obligation under Sections 280(1), 241(2) of the German Civil Code (Bundesgesetzbuch, BGB). In reaching its decision, it relied primarily on the above-mentioned passage of eBay's GTC, which contains protection that extends beyond abusive criticism. It is sufficient that the feedback is not worded in an objective way. In the regional court’s view, the feedback lacked sufficient objectivity due to the exaggerated wording. There is also not a connecting factor from which the reader of the feedback can see why the shipping costs are described as “usury” in the feedback.
With its appeal on points of law, the buyer  now sought the restoration of the local court’s judgment.

In its decision of 28 September 2022, the Federal Court of Justice concurs with the local court’s opinion. In essence, the customer, like the local court, relies on the fundamental right of freedom of expression under Article 5 of the Basic Law (Grundgesetz). According to the Federal Court of Justice, freedom of expression also includes criticism that reaches an overblown or exaggerated level. Only abusive criticism would limit the buyer's freedom of expression. The buyer does not exceed this threshold in this case, since his statement regarding the shipping costs deals objectively, at least partially, with the performance of the seller, and defamation was not to the fore. The failure to state reasons for this feedback also did not prevent its admissibility, since a statement of reasons was not required for a permissible expression of an opinion

The decision provides clarity with regard to negative feedback on merchants posted by their customers on online platforms. The Federal Court of Justice essentially leaves it at the key factors of inadmissible feedback by continuing to focus on the abusive criticism threshold. In particular, it interprets the relevant provision of eBay's GTC as not containing a restriction beyond the threshold of abusive criticism. This assessment is based on the interpretation of the GTC, which do not contain any additional requirement of objectivity. The Federal Court of Justice bases this assessment on three key points:

• In the interest of the parties, the lack of a definition of the term "objective" in the GTC speaks for applying the established case law of the highest court regarding abusive criticism to the inadmissibility of feedback posted on an online platform.
• The clause itself is based on the abusive criticism as a threshold. If there were a requirement of objectivity, the mention of abusive criticism would be irrelevant.
• It is not in line with the protection of freedom of expression if any disparaging formulation is sufficient to assume an inadmissible expression of opinion.

Once again, the Federal Court of Justice is thus taking the opportunity to strengthen the freedom of expression, including in respect of statements posted on online platforms. In this regard, the decision is not entirely surprising, as the case law of the higher courts had already previously referred to abusive criticism as the limit for permissible feedback. In the past, the Düsseldorf Higher Regional Court had already ruled that a value judgment in a comparable context of negative feedback on eBay with reference to the lack of abusive criticism was not sufficient. Instead, it had based its decision on the fact that the great importance of freedom of expression requires a strict standard when affirming an application for injunctive relief in relation to negative feedback.

This is a decision that is of crucial relevance for all customers and merchants on the eBay platform. Furthermore, it can also be concluded with regard to other online platforms that the customer's rights to post negative feedback on a merchant are extensive here as well and are only restricted when the criticism is abusive.

The ordinary courts are likely to grant the merchant's application in future court disputes about the admissibility of negative feedback on online platforms only when the abusive criticism threshold has been crossed.

For merchants operating on online platforms, the decision means that they must generally accept negative feedback as long as the statement is not subject to any objective dispute.

The question remains open to what extent an explicit requirement of objectivity in eBay's GTC would have to be evaluated. At least according to the current press release, the Federal Court of Justice states that a requirement of objectivity cannot be inferred from eBay's GTC. In this regard, the question remains as to whether a requirement of objectivity could be effectively included at all via the GTC. An answer to this question will possibly be provided in the near future in the reasons for the judgment.