A Day Nursery has successfully claimed damages for false Google Reviews. Cost, including legal costs, must also be paid.
The Day Nursery asserted that a certain N. had placed reviews (Google Reviews) using aliases. It concerned the placement and adjustment of negative reviews relating to the Day Nursery. In addition, N. had added hurtful comments relating to the management and had used portrait photographs of random women, which had been placed next to the reviews. In this way, N. had been anonymously operating for ten months to the detriment of the Day Nursery.
The person placing the negative reviews has not contested in a substantiated way that he had acted contrary to all that which, according to unwritten law, is required by society and therefore that, by doing so, he had committed an unlawful act towards the Day Nursery.
The court ruled that damages must be paid because of the false Google Reviews.
N. had not disputed that the unlawful act can be attributed to him. This means that pursuant to Article 6:162 of the Dutch Civil Code, N. is obliged to compensate the loss suffered by the Day Nursery due to the unlawful act of N.
According to the Day Nursery, the claimed amount of the economic loss is the wage of its managers who had to spend in total 15 working days dealing with the consequences of the unlawfully placed reviews by N. The court accepted this:
The Day Nursery comprehensively stated, and the married couple T. provided additional statements on this during the hearing, that its managers have had to spend a lot of time informing parents and local residents in response to the false reviews on Google Maps (they apparently had been approached regarding this by 400 people) and that they in addition have had to spend a lot of time assisting the inspection service and answering its questions. In addition, according to the Day Nursery a lot of time was spent on the interlocutory proceedings and contact with their lawyer.
The wage costs of the managers relating to the time they had not been able to dedicate to their actual work for the Day Nursery are, contrary to that asserted by N., eligible for compensation by N. as this loss can be attributed to N. as a result of his unlawful act. The fact that the Day Nursery would have had to incur those wage costs anyway even if the false reviews had not been placed, as argued by N., is not relevant. The loss alleged by the Day Nursery is after all that the married couple T. have not been able to spend the time for which they received wages on the required work for the Day Nursery. As N. has not disputed the amount of the claimed wage costs further and the amount of such is reasonable in the circumstances, these damages are awarded as claimed. The increase with statutory interest (as referred to in Article 6:119 of the Dutch Civil Code) is also awarded as claimed.
The Day Nursery also asserted that the false reviews concerned serious accusations (which appeared to be reliable) about a company in a very sensitive sector, that N. acted intentionally and had been active in a calculated manner for 10 months, that his smear campaign has had maximum reach as his reviews had been placed on an easily accessible and frequently visited internet website and those reviews were immediately shown if someone searched on the term The Day Nursery, that those reviews remained on this website for a long time (1 to 10 months) and that the managers of the Day Nursery experienced much disruption of the false reviews placed by N.
The Court did not follow this. The Day Nursery should have stated more:
It does not follow from the facts put forward by the Day Nursery however that this risk had actually materialised. In view of the challenge by N. it was for the Day Nursery to further explain this alleged loss, for example by quantifying the number of children that were removed from the Day Nursery by the parents, the drop of registrations for the Day Nursery compared to other relevant local figures (such as birth rates and registrations of children for other day nurseries in the region/neighbourhood) or by a survey amongst the parents on the image of the Day Nursery. As the Day Nursery failed to do so and had not made it clear at all to what extent the reputation of the Day Nursery had (actually) been harmed in the region of North Amsterdam, the claims under IV were rejected.
Reimbursement of costs
The Day Nursery also claimed payment of the legal and other costs incurred. Although these costs were partly rejected, the costs relating to the proceedings against Google were allowed:
The proceedings against Google had indeed been necessary to obtain the IP addresses used to place the false reviews on Google Maps so that the identity of the user or users could be discovered. These costs were incurred in the determination of liability for the loss-causing event (Article 6:96 paragraph 2(b) Dutch Civil Code). In addition, these costs had been necessary to have the false reviews removed (and so to limit the loss as referred to in Article 6:96 paragraph 2(a) of the Dutch Civil Code). The compensation for its financial loss (of €11,000) claimed by the Day Nursery in respect of the interlocutory proceedings against Google was therefore so closely related to the unlawful act by N. that this could be attributed to him as a result of this event as referred to in Article 6:98 of the Dutch Civil Code and also satisfied the double reasonableness test of Article 6:96 paragraph 2, so that these damages could be awarded.
In the end, the person who had placed the negative reviews had to pay nearly €17,000 in damages and costs.
In the appropriate cases, these legal proceedings open the way to claim, in addition to an order to remove the negative reviews, damages and payment of legal and other costs. This is good news for businesses being confronted with false reviews.
By Joost Becker, lawyer specialising in internet law