In the last months I have received several emails from Google taking down reviews written years ago during my trip to Germany.
Apparently German businesses have found a way to abuse the Google Maps reporting feature to falsely have reviews taken down as “defamatory”, despite there being nothing of the sort in the reviews. Saying “I did not enjoy the food”, or “Service was bad” is not defamatory or libel. Legally speaking, in Europe, the bar for something being defamatory against a business is much higher than towards a private individual.
I have so far waited since May regarding my “I did not enjoy the food” review, and just received another one of these emails two days ago where I said I found the service to be “rude”. This is not defamatory. Defamatory means saying something that is patently false, and it must be an aggravated falsehood, such as falsely claiming somebody to be a pedophile (for example). That is defamatory. Saying food was cold, or service was rude, is NOT.
But it does not stop here - Google asks as proof for a German court order that supports my case. Just to note, Google is breaking the law here. It is a fundamental principle in European jurisprudence that an accused is innocent until proven guilty, in other words, the accused does not have to prove that they are innocent. If these German businesses believe that these negative reviews are defamatory - then they must prove that - not the reverse.
This places an undue burden on consumers, and Google might very well be in breach of the Digital Services Act and other consumer protection acts.
On top of that, we have freedom of expression in the EU - the EU Charter of Human Rights, art. 11. In a debate of human rights vs defamation, freedom of speech takes precedence without a doubt, and therefore the bar for defamation is quite high in European courts. I found a legal brief from a large European law firm that German courts rarely even take up defamation cases, because the bar of indisputable proof is so high—Even if a statement could be considered defamatory, German courts often weigh the public interest criterion higher (which is the case for restaurant reviews), and almost never take up a case of defamation if the business or person claiming defamation is not well-known in the public sphere. To be “defamed”, an underlying criterion is that the person or business claiming defamation is well-known and has a public reputation and credibility (aka “fame”). If false statements have no public consequences for you, because you are an unknown, then you are, per definition, not “de-famed”. And please also note the core underlying criterion of falsehood. If your public credibility takes a hit because of true statements being made, then that is your own fault—this is not defamation. And, as previously discussed, it is up to the person or business claiming defamation to prove without a reasonable doubt that the statements being made are false and defamatory—not the reverse.
If I claim in my review that the service was “rude” and the food arrived “cold”, then it is for the restaurant to prove:
a. That the food was warm — e.g. a thermometer reading with an exact date and time stamp
b1. That the service was not rude — a personal opinion preference, difficult to prove
b2. Furthermore have to prove that my personal opinion is not protected free speech
c. If they can prove the above, furthermore have to demonstrate that the restaurant is well-known
d. And if they can lift that, demonstrate in which ways their public credibility has been affected, e.g. by lost revenue, boycotts, death threats, demonstrations, or other such examples. Being hit on your personal pride is not, per definition, counted as defamation.
I have even deleted all text in the flagged reviews, but they are just getting immediately “Not Posted” and taken down by Google’s horrible automated review tool.
Since the EU Digital Markets and Digital Services Acts are supposed to protect consumers from this type of anti-competitive behavior from the tech giants, I have taken the liberty to notify the German Ministry of Consumer Affairs, The Bundeskartelamt, and the European Commission, which is right now undergoing a review of these two new regulations - the DMA, DSA.