The Problem with Factual Claims

In the "Crash course on personality rights" on Day 2 of the re:publica TEN, lawyers Roman Portack and Ansgar Koreng explained why review portals often erase critical comments. The reasoning behind this usually has to do with a blurry separation between opinion and fact – a distinction that everybody should be aware of.

If a user writes a negative review on the "" review portal for doctors, they can expect their contribution to be erased quite quickly. Why? The users often write their comments as if they were factual claims and don't clearly express it as their opinion. The doctor in question then has the possibility of putting in their veto. This leads to one claim being weighed up against the other, and the review portal erases the review out of fear of a legal dispute. This is because the portal cannot prove the malpractice depicted by the user.

"We generally feel better about opinions", explained Roman Portack from the Press Council, highlighting the especially difficult differentiation between stating one's opinion and statements of fact. In this legal crash course, Portack and his colleague Ansgar Koreng explain the dangers of factual claims: An opinion is a subjective, valued statement. A fact, however, must be true. If someone is writing up a fact, then they have to be able to prove it.

Even if someone places phrases such as "I believe" or "In my opinion" at the beginning of their claim, it doesn't mean that they have safeguarded their statement as an opinion. "These are often used to conceal factual claims" Koreng explains. Caution is also called for when dealing with possible interests involving confidentiality: If the fact reveals aspects of a person's private life, then it is not allowed to be stated publicly. In principle, anybody could ask if a factual claim affects the dignity of the person in question.

Portack gives the participants a simple rule on their way: If opinion and fact are mixed, the Press Council will judge it as an opinion, not as a factual claim. For example, if a fact follows a personal conclusion, like in this sentence: "I saw XY at the demonstration with an NPD (German ultranationalist party) flag, so I'm guessing that XY is a Nazi." This sentence would be judged to be an opinion by the Press Council. But, again, the rule states: Only if the fact is actually true.