Sharing of negative user reviews online must be tolerated
The core question of the doctor list case was whether online sharing of user reviews of health professionals on the Norwegian website «Legelisten.no» was necessary to ensure the freedom of expression and the public’s need for information. Furthermore, the Supreme Court had to decide whether those interests outweighed the privacy interests of the persons being reviewed.
The ruling entails that doctors, chiropractors, dentists and other people in various health professions must tolerate the sharing of negative user reviews online. The decision also has implications for other online user review services.
The Norwegian Medical Association, which was the plaintiff in the case, claimed among that it was unnecessary, and thus not legal, to let the reviews be displayed by search engines such as Google. According to the Norwegian Medical Association, this leads to an unnecessary spread of burdensome comments about individuals.
The Supreme Court did not agree. The use of search engines was considered crucial for the public to have access to the information. The Supreme Court also accepted the fact that Legelisten.no did not use «privacy-enhancing technology». Such technology could lead to user ratings being shielded from the search engines, but the Court held that this would lead to an inappropriate reduction in user accessibility.
A key premise in the ruling is that professionals must be prepared to be reviewed and ranked online. Here, the Court seems to emphasize the characteristics of a digitalized information society. Today, it is hardly possible to find adequate alternatives for sharing user ratings that meet consumer needs without allowing for online sharing.
An important part of the assessment was also whether Legelisten.no had taken sufficient measures to reduce the possible burden that negative online feedback leads to. Legelisten.no uses, among other things, a moderation function, so that some submitted statements are moderated or not even published. Nevertheless, several reviews will pass even if they are in conflict with Legelisten’s internal guidelines. Nor will the mentioned persons’ ability to flag unwanted messages prevent the publication of negative reviews from consumers. However, the court considered that the measures were good enough.
The ruling is based on concrete assessments related to Legelisten.no but assumes to affect also how other online services that allow for sharing of user reviews must be assessed from a legal perspective. As mentioned, Legelisten.no includes not only doctors in public health professions, but also chiropractors, dentists and other people in private health care groups.
The Supreme Court ruled that persons in such occupational practice groups could not, on a general basis, reserve themselves against publicity. One can imagine that the opposite result could have very unfortunate consequences for other services that are also based on web sharing of user reviews. «Anbud.no» is an example of a service where users can share their experiences of professionals who have performed various professional services. If the Supreme Court had concluded on an unconditional right of reservation related to Legelisten.no, this could also have affected other and more commercial user review services online. Even if that was not the result, the verdict indicates where the line should be drawn.