The plaintiff is a gynaecologist in private practice. The defendant operates a portal for searching for and rating doctors. Internet users can call up information about doctors and other health professionals available to the defendant free of charge. The data that can be retrieved includes, among other things, the name, speciality, address of the practice, contact details and consultation hours as well as evaluations of the doctor by portal users. The submission of an evaluation requires prior registration. For this purpose, the user wishing to submit a review only has to provide an e-mail address, which is verified during the registration process.
The plaintiff is listed in the said portal with his academic degree, his name, his specialisation and the address of his practice. Users have rated him several times on the portal. Based on his general right of personality, he demands that the defendant refrain from publishing the data concerning him - i.e. "basic data" and evaluations - on the aforementioned website and to delete his profile completely.
The Local Court and the Regional Court dismissed the action. The VIth Civil Senate of the Federal Court of Justice, which is responsible for the protection of the general right of personality, rejected the plaintiff's appeal. The Federal Supreme Court (Bundesgerichtshof) dismissed the plaintiff's appeal.
The plaintiff's right to informational self-determination does not outweigh the defendant's right to freedom of communication. The defendant is therefore entitled to collect, store and use the data according to § 29 para. 1 Federal Data Protection Act (BDSG) and to transmit the data to the portal users according to § 29 para. 2 BDSG. Admittedly, a doctor is not inconsiderably burdened by his inclusion in an evaluation portal. In addition to the effects on the doctor's social and professional reputation, ratings submitted can influence the choice of doctor of persons in need of treatment, so that the doctor has to expect economic disadvantages in case of negative ratings. There is also a certain risk of misuse of the portal.
On the other hand, however, it had to be taken into account in the context of the weighing of interests that the public's interest in information about medical services is quite considerable against the background of the free choice of doctor and that the portal operated by the defendant can contribute to providing a patient with the information he or she considers necessary. Moreover, the data collected, stored and transmitted for the operation of the portal only affect the doctor in his or her so-called "social sphere", i.e. in an area in which personal development takes place from the outset in contact with other persons. Here, the individual must be prepared for the observation of his or her behaviour by a wider public as well as for criticism. The doctor concerned is not defenceless against the risk of abuse, as he can demand that the defendant delete untrue statements of fact as well as insulting or otherwise inadmissible evaluations. The fact that reviews can be submitted anonymously does not lead to a different result. This is because the possibility of anonymous use is inherent in the internet (cf. § 13 para. 6 sentence 1 of the German Telemedia Act [TMG]).
Decision of the Federal Supreme Court of 23.09.2014, file number VI ZR 358/13
Source: Press release of the BGH No. 132/2014 of 23.09.2014
Remark:
Since doctors thus have no possibilities to have their entries deleted from doctor portals and rating portals are popular and intensively used by (potential) patients, doctors are strongly advised to regularly check their own ratings in rating portals and have negative entries deleted.
Incidentally, this also applies to other occupational groups, such as craftsmen, car repair shops, hotels and insurance brokers. For these and other professional groups, too, the evaluations of one's own company and one's own activity in evaluation portals should be checked regularly. You should not underestimate the impact of negative evaluations in evaluation portals on customers, patients and clients.
Our law firm is already active in this context for numerous clients, including doctors, and arranges, among other things, for the deletion of untrue factual claims as well as insulting or otherwise inadmissible evaluations.
Please do not hesitate to contact us if you have any questions.
Goldberg Attorneys at Law 2014
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
