Since an evaluation is basically an opinion in the legal sense, it must be examined in the event of a dispute whether the limits of freedom of expression have been exceeded with the evaluation. Criticism that is based on undisputed or proven facts is not unlawful as long as there is no excess of judgment. According to case law, the only dishonorable judgments are those that are not based on true facts or exceed the limits of what is tolerable. The latter presupposes "that the statements are disproportionately exaggerated and lack any degree of objectivity". The Vienna Higher Regional Court (OLG) recently had to decide whether such a case exists. The subject of the proceedings was a review published on the company profile of a pediatrician in the Google Local Listing. The user had claimed in a posting that the pediatrician or one of her employees had turned away a child suffering from severe pain during a telephone call to make an urgent appointment because it was not yet a patient with her, which was miserable in human terms. The evaluation platform that the pediatrician legally claimed against invoked the proof of truth, which, however, was not successful. In its decision, the Vienna Higher Regional Court stated that for the reader of the posting, the alleged actions of the pediatrician "constitute conduct that is incompatible with medical professional ethics, dishonorable and contrary to public decency and may disparage the pediatrician in public opinion".
The user's statement is to be qualified as an excess of judgment. According to this ruling, the description of the pediatrician as miserable because of an untruthfully described incident during the intended appointment describes the limit of what is tolerable. This decision clearly shows that not everything is permitted, even with online reviews, and that the limits of the right to freedom of expression can be exceeded in individual cases.
