Thu 12. Dec 2024, 10:10
The curse of ‘burnt domains’ was revealed in a legal dispute over the deletion of negative reviews on a review portal. The plaintiff, a newly founded GmbH, took over the domain of its predecessor and carried on as before - including in terms of personnel. The negative reviews are now hanging over her, as the Fulda Regional Court confirmed in a recent judgement.
The plaintiff, which operates in the conservatory construction and roofing sector, acquired an internet domain from the insolvency estate of the original domain holder as part of its foundation in 2020 by way of an asset deal. The managing director of the plaintiff was previously the managing director and sole shareholder of the original domain holder, which had gone bankrupt. After he left as managing director, his wife remained in the company as managing director while he effectively ran the business. As early as 2018, the original domain owner, represented at the time by the current managing director of the plaintiff, demanded that the defendant delete reviews on its review portal, which was publicly accessible without registration, but was unsuccessful. In May 2024, the plaintiff wrote to the defendant asking it to rename the profile for the acquired domains in its review portal. The defendant complied with this request. The plaintiff also demanded the deletion of two reviews and four comments, setting a deadline. The defendant did not comply with this request, which is why the plaintiff filed an action with the Regional Court of Fulda and demanded that the defendant refrain from disseminating and publishing the negative reviews and comments on its review portal and remove the negative reviews and comments immediately. She claims that she has nothing to do with the reviews and comments that concern the original domain owner. It is an independent company with its own legal personality. There was no transfer of business, but merely an asset deal regarding the domain. The defendant applied for the action to be dismissed and argued, among other things, that the plaintiff itself was responsible for the fact that its name had been linked to the domains taken over on the rating portal. Although the operator had changed here, the name of the former GmbH compared to the new GmbH, the shareholders and the acting persons as well as the purpose of the company, the sale of conservatories, did not change or only changed slightly. The comments and evaluations merely claim that four and six years ago they were dealing with a certain company. The plaintiff, who only wanted to have the comments that were bad for her deleted, was trying to pick the sultanas out of the cake. She could have registered a different domain for her business. She could also have drawn attention to the change of operator by posting her own comment. In the comments and negative reviews, explicit reference is made to experiences with a Mr N. or a company N., without reference to a legal entity. Finally, the plaintiff advertises with 25 years of experience, whereby the plaintiff, founded in 2020, uses the market experience of the previous domain owner.
The Fulda Regional Court dismissed the action in its entirety, as there was no infringement of a company's right of personality (Sections 1004 (1), 823 (1) BGB by analogy in conjunction with Art. 2 (1), Art. 19 (3) GG). Art. 2 para. 1, Art. 19 para. 3 GG) nor was there any unlawful interference with the plaintiff's established and exercised business operations (§§ 823 para. 1, 1004 para. 1 sentence 2 BGB). The defendant was not obliged to delete the challenged reviews on its review portal, not even after becoming aware of the transfer of the domain to the plaintiff as a new legal entity. The plaintiff was in fact continuing the business of the former domain holder. Here, the activity of the managing director of the plaintiff as the determining person in both companies is relevant. The address data in the imprint, the telephone number and the business purpose on the website are identical to those of the previous domain holder. The rights of the plaintiff would also have to take a back seat to the legitimate information interests of the defendant's researching customers because the plaintiff, as a company founded in 2020, advertises with 25 years of experience that refer to the previous domain holder. The court confirms further arguments of the defendant. With reference to the case law of the German Federal Court of Justice (Bundesgerichtshof, BGH), the court recognised that the plaintiff, as a company, has a right of personality; however, the fact that people do not rate the domain or the plaintiff's website, but rather its services, does not constitute an unlawful infringement of personality rights. There was in fact a continuation of the business operations of the previous domain holder by the plaintiff, which is why there was a legitimate interest in evaluating negative experiences with the plaintiff's predecessor. The defendant was therefore not liable as an indirect interferer for the posts on its rating portal. The Fulda Regional Court thus dismissed the action.
You can find the judgement of 30.11.24 (Ref.: 3 O 92/24) of the Regional Court of Fulda (in German) at:
https://www.stroemer.de/entscheidungen/ ... -3-o-92-24