GE: eBay — How Far May a Negative Review Go?

Oct 14, 2022 Benn-Ibler Rechtsanwälte

“Usurious shipping costs!!!” can still be considered a permissible evaluation on eBay, according to the German Federal Court of Justice (Bundesgerichtshof, BGH). This does not constitute abusive criticism and the seller is therefore not legally entitled to have it removed.

In the case at hand, the defendant had bought four swivel bolt clamps from the plaintiff on eBay for EUR 19.26 each, of which EUR 4.90 were the shipping costs charged to the defendant. The sale was conducted on the basis of eBay’s General Terms and Conditions (GTC) applicable at that time, which the parties had agreed to prior to the transaction. Section 8 of the GTC states: “Users are required to provide strictly truthful information in the reviews they submit. Reviews submitted by users must be factual and may not contain any abusive criticism.” After receiving the goods, the defendant rated the shop by saying “The products are fine; the shipping costs are usurious!”

The district court dismissed the complaint on the grounds that the term usury was merely a value judgement. The word usury would only become inadmissible if it constituted defamatory criticism. In the opinion of the court of appeal, however, the defendant violated a contractual duty of care. The defendant’s assessment disregarded the requirement of objectivity in Section 8 of the General Terms and Conditions. Thus, protection was afforded which went beyond that of defamatory criticism. The defendant’s comment constituted a judgement without any factual reference, which makes his comment unjustifiable. There is no possibility for other readers to see why the shipping costs were usurious.

The Federal Supreme Court ruled on the issue as follows: The plaintiff is not entitled to removal of the rating. The court negated a contractual breach of ancillary obligations as the court of appeal had ruled. Section 8 of the GTC does not impose any stricter restrictions than what goes beyond generally applicable limits of defamatory criticism. Unfair, exaggerated, or even abusive criticism does not in itself make a statement defamatory. Rather, defamation of an individual must be the intended main message of such a statement.

Press Release No. 141/2022 on BGH, VIII ZR 319/20 (28 September 2022)