Reputation Protection on Online Rating Sites
Abstract
Part I of this Article explores the concept of reputation as interpreted in U.S. common law jurisprudence and the German continental law tradition. Under U.S. common law, reputation is largely protected through defamation law, the fundamental concern of which is protecting an individual’s representation to the world and the world’s social construction of his or her identity. German continental law, in contrast, recognizes the protection of a person’s reputation through personality and dignity rights. Beyond protecting against unwarranted reputational harm and unjustified social condemnation, German law also protects an individual’s private sphere. An overview of the two legal systems affords a better understanding of how reputation is protected within embedded systems of social and legal norms. Part II then examines the uphill legal battle that plaintiffs in the U.S. and Germany must wage in the courts against allegedly untrue or misleading comments on online rating platforms. Drawing on the lessons gleaned from the two jurisdictions, Part III argues that we need a new governance regime that balances reputation protection and freedom of expression, including guidelines and procedures that are both Internet-adequate and fitting for the social sphere that is touched, recognizing users’ right to respond and online platform’s need to be responsive to users’ requests to moderate incorrect information. A new governance regime could improve the coordination of legal and social norms, and ultimately yield decisions about what kind of online evaluation platforms are reliable and thus deserving of social recognition and legal protection.