The plaintiff is a practicing gynecologist. The defendant operates an online portal for physician search and ratings. Internet users can freely access information provided by the defendant regarding physicians and other healthcare professionals. The accessible data includes, among other things, name, specialization, practice address, contact details, consultation hours, and physician ratings submitted by portal users. Submitting a rating requires prior registration. To do so, users intending to provide a rating merely need to supply an email address, which is verified during the registration process.
The plaintiff is listed on the aforementioned portal with his academic degree, name, specialization, and practice address. Users have rated him multiple times on the portal. Invoking his general right to personality, he demands that the defendant refrain from publishing his data – specifically, “basic data” and ratings – on the aforementioned website, and completely delete his profile.
Both the District Court and the Regional Court dismissed the action. The Sixth Civil Senate of the Federal Court of Justice, which is responsible, inter alia, for the protection of the general right to personality, rejected the plaintiff's appeal.
The plaintiff's right to informational self-determination does not outweigh the defendant's right to freedom of communication. Consequently, the defendant is authorized to collect, store, and use data under Section 29 (1) of the Federal Data Protection Act (BDSG), and to transmit data to portal users under Section 29 (2) BDSG. While a physician is indeed significantly impacted by inclusion in a rating portal, submitted ratings can – beyond affecting the physician's social and professional standing – influence the choice of physician for patients requiring treatment, potentially leading to economic disadvantages in the case of negative reviews. Furthermore, there is a certain risk of misuse of the portal.
Conversely, during the balancing of interests, it was crucial to consider the public's substantial interest in information regarding medical services, particularly in the context of free physician choice. The portal operated by the defendant can significantly contribute to providing patients with the information they deem necessary. Moreover, the data collected, stored, and transmitted for the portal's operation only impacts the physician within their “social sphere” – an area where personal development inherently unfolds through interaction with others. In this domain, individuals must anticipate public scrutiny of their conduct and be open to criticism. The physician concerned is not left unprotected against potential misuse, as they can demand from the defendant the removal of false factual claims, as well as offensive or otherwise impermissible ratings. The ability to submit anonymous ratings does not alter this outcome, as anonymous usage is an inherent characteristic of the internet (cf. Section 13 (6) sentence 1 of the Telemedia Act [TMG]).
Decision of the Federal Court of Justice of September 23, 2014, File number VI ZR 358/13
Source: Press release of the Federal Court of Justice No. 132/2014 of September 23, 2014
Note:
Given that physicians currently lack the means to have their entries removed from physician portals, and considering the popularity and intensive use of rating portals by (potential) patients, it is strongly recommended that physicians regularly monitor their own ratings on these platforms and seek the deletion of negative entries.
This also applies to other professional groups, including craftsmen, car repair shops, hotels, and insurance brokers. For these and other professions, ratings pertaining to their own business and activities on review portals should be regularly monitored. The impact of negative ratings on customers, patients, and clients should not be underestimated.
In this regard, our firm already represents numerous clients, including physicians, and, among other services, facilitates the deletion of false factual claims, as well as offensive or otherwise impermissible ratings.
Please do not hesitate to contact us with any questions.
Goldberg Attorneys at Law 2014
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
