By Julia Helml, Friedrich Helml and Ludwig Helml
In our increasingly digitalised world, online reviews on rating portals such as Google Maps are becoming a key factor in the decision-making process for potential clients. This article examines the possibilities that exist for lawyers under the Austrian legal system to defend themselves against unjustified negative assessments by opponents who have previously lost legal cases against them.
Reputation management is becoming more and more important every year. Positive reviews on company rating platforms, for example on Google or on social media platforms, can be powerful customer magnets. Potential clients generally perceive positive average ratings as a seal of quality and automatically assume a quality advantage over the competition. Conversely, negative reviews can often lead to potential clients not perceiving a service provider as a reputable provider at all.
The purpose of reviews (and the reason why users trust the system) is to benefit from the experience of an almost infinite variety of users and thus save an individual user the trouble of searching for the most suitable candidate. Online ratings are thus increasingly replacing the personal recommendations of a trusted person. We tend to place the same trust in the anonymous Internet and its users that we would place in a personally trusted person when they make a personal recommendation.
In the legal market, this can create a curious constellation that leads the intended system ad absurdum. For example, we are currently representing a long-established and nationally known lawyer colleague who does not shy away from difficult cases and is very successful; nevertheless, he is confronted with a below-average and business-damaging average rating on Google. But what is our client guilty of? Did he give bad legal advice or was he exceptionally unsuccessful inside or outside the courtroom? The opposite is the case.
The clients advised or represented by our client are, without exception, very satisfied with his performance and enthusiastic about his above-average commitment.
However, as our client often acts as legal counsel in highly publicised and polarising cases, there are numerous negative reviews from uninvolved third parties that are made solely for political reasons (for example, because someone believes that a lawyer should not take on such cases).
In addition, our client has been successfully enforcing claims for unlawful use of other people’s private property for years. However, his motivated and highly successful efforts on behalf of his clients in these cases also turned out to be a boomerang for his online reputation, as opponents who were successfully sued by him leave (completely unjustified) negative reviews, some anonymous and some under their real names, out of revenge.
A negative Google review of an entrepreneur can both violate their personal rights pursuant to Section 16 of the Austrian Civil Code (ABGB) and cause damage to credit within the meaning of Section 1330 (2) ABGB. In this context, the first thing that matters is whether it is a statement of fact or a value judgement. A factual claim can be checked for its truthfulness. A value judgement is an expression of opinion by the author. It is neither true nor untrue, but can be justified or unjustified.
In the case of a negative review without comment (e.g., with one out of five possible stars), the review represents a combination of an expression of opinion and a statement of fact that leads the average Google Maps user to the conclusion that this review represents an assessment of the company’s performance in relation to the author of the review. In the case of our client, however, such statements lack any factual basis, as there is no justification for the bad reviews and there have been no contractual interactions between our client and the authors of such reviews; nor have these authors had any business dealings with our client or used our client’s services in a way that would put them in a position to objectively evaluate our client.
With such reviews, the authors primarily violate Google’s internal guidelines for content published by Google Maps users. Contributions to Google Maps, including reviews or ratings of companies, are only permitted if they relate to experiences that are actually made at a location or with a company. If this is not the case, the interactions are considered fake and therefore inadmissible.
Such reviews are therefore made without a factual basis and constitute a violation of our client’s general right of personality, as they are likely to negatively influence or worsen the reputation or economic standing of our client and the general perception of the legal services provided by him. This is not least because the objectionable rating also negatively influences the average rating displayed for our client and the average rating of a service provider is generally perceived first.
Section 16 ABGB grants inherent human rights to every person. A false representation of a person (both online and offline) can constitute a violation of these human rights.
The same applies in the event that an opponent actively pretends to be a client of a lawyer by posting a negative review with a corresponding comment. In this case, the corresponding post gives the impression that the client has used the lawyer’s services and that these were objectively deficient. (In the case of our client, however, the opposite was generally the case, because the reason for the poor ratings by opponents was precisely because our client had successfully represented his actual clients against these opponents or against the socio-political views of a rater.)
The dissemination of untrue statements of fact in this way is not covered by the fundamental right to freedom of expression. Section 1330 of the ABGB stipulates that someone who has suffered real damage or lost profit as a result of defamation is entitled to compensation. This also applies if someone spreads facts that jeopardise the credit, acquisition, or advancement of another person and whose falsity they knew or should have known. In this case, in addition to compensation for damages, the public retraction of the statement made and the publication of the retraction can also be demanded.
The Supreme Court recently dealt with this issue and stated in a landmark decision that a one-star rating of a law firm on an online platform can be damaging to reputation and credit if it does not originate from a client’s own experience but from the other party (Supreme Court 6 Ob 143/21d).
The negative reviews of our client described above are therefore unlawful, especially as the average user is falsely led to believe that these are reviews of our client’s customers, which is not actually the case. Such unlawful reviews can therefore be removed with the help of the courts.
Contact Aliant Austria here:
https://aliantlaw.com/places/austria/
Aliant Austria is a leading Austrian boutique law firm specialising, inter alia, in data protection law, intellectual property, litigation, and arbitration. The firm is also very active and successful in the areas of dispute prevention and dispute management, real estate law, and capital markets law.
About the Authors
Friedrich Helml heads the dispute resolution department, Julia Helml heads the firm as managing partner and Ludwig Helml heads the real estate practice.
