OGH: Defamation in the context of a review on an online platform
The inaccuracy of a factual claim can also result from an incompleteness of the facts disclosed. The person concerned could thereby appear in a completely different light, or a false impression could be created.
The plaintiff represented the defendant's wife in the course of their divorce. The defendant frequently called the plaintiff and also insulted her staff. On one day he called because he wanted to obtain a modification of the divorce settlement being sought. After the plaintiff had ended this telephone call, he tried to call the plaintiff “every second" for about an hour. As the telephone line was permanently obstructed by these constant calls, the plaintiff had the defendant's telephone number blocked in her telephone system so that the defendant could no longer call the plaintiff with his number. Subsequently, the defendant wrote a review of the plaintiff on Google Maps, awarding only one out of five stars and writing: "My calls are ignored and my number has been blocked, so the law firm cannot be reached with my number.”
According to OGH case law, a review on an online platform is also to be assessed according to the principles of Section 1330 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB). A "star" rating with accompanying text is to be assessed in its entirety.
A statement is untrue if its factual core does not correspond to reality at the time of the statement. However, the inaccuracy of a factual statement can also result from an incompleteness of the facts disclosed, which casts the alleged behaviour of the person concerned in a completely different light.
The lower courts assessed the defendant's assessment of the plaintiff in its entirety and were of the opinion that the defendant had reproduced the facts in an abbreviated form and had omitted essential elements, namely the reason for blocking his telephone number. This created the inaccurate impression that the defendant had been a client of the plaintiff or had contacted the plaintiff with a legitimate concern, to which the plaintiff had reacted by blocking his telephone number.
The OGH confirmed that the incorrectness of a factual claim can also result from the omission of essential information. Such an impression may scare off potential clients and thus jeopardise the plaintiff's credit within the meaning of Sec. 1330 para 2 ABGB.
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