Claim for Deletion of an Entry on Jameda

Facts of the case:

The parties are disputing the inclusion of the plaintiff doctor in the defendant's doctor review portal.

The defendant operates a doctor search and review portal at the internet address www.jameda.de, where information about doctors and practitioners of other healthcare professions can be accessed free of charge. The defendant's own information, referred to as the doctor's “basic data,” is offered. This includes – to the best of the defendant's knowledge – academic degree, name, specialization, practice address, further contact details, as well as consultation hours and similar practice-related information. In addition, ratings submitted by users in the form of a grading scheme, as well as free-text comments, are available. The defendant offers doctors the option of concluding paid contracts, under which their profile – unlike the basic profile of non-paying doctors – is enhanced with a photo and additional information. Furthermore, when a non-paying doctor's profile is accessed, profile pictures of direct competitors of the same specialization in the local vicinity, marked as “Advertisement,” are displayed, including distance information and ratings. In contrast, for doctors who have registered with the defendant for a fee and booked a “Premium Package,” the defendant does not display competitors on their profiles.

The plaintiff is a practicing dermatologist and allergist. On the defendant's portal, she is listed as a non-payer against her will, without a picture, but with her academic degree, name, specialization, and practice address. When her profile is accessed on the defendant's portal, under the category “Dermatologists (with picture) in the vicinity,” other (paying) doctors with the same specialty and a practice in the plaintiff's vicinity appear. In addition to the rating of each other doctor, the respective distance between their practice and the plaintiff's practice is displayed. The plaintiff received multiple reviews in the past. In 2015, through her former legal representatives, she challenged a total of 17 accessible reviews on the defendant's portal. Following their deletion, the plaintiff's overall rating improved from 4.7 to 1.5.

With the present action, the plaintiff demands from the defendant the complete deletion of her entry on www.jameda.de, the deletion of her data published on the website www.jameda.de, a cease and desist from publishing a profile concerning her on the said website, and reimbursement of pre-litigation legal costs. The Regional Court dismissed the action. The plaintiff's appeal was unsuccessful. With the appeal on points of law admitted by the Higher Regional Court of Appeal, the plaintiff continues to pursue her claims.

The Senate's Decision:

The appeal on points of law was successful. The Senate granted the action.

According to § 35 para. 2 sentence 2 no. 1 of the BDSG, personal data must be deleted if its storage is impermissible. This was the case here.

In its judgment of September 23, 2014 – VI ZR 358/13 (BGHZ 202, 242) – the Senate had already decided in principle for the review portal operated by the defendant that the storage of personal data with a rating of doctors by patients is permissible.

The present case differs from the previous one in a decisive aspect. With the aforementioned practice associated with the review portal, the defendant abandons its position as a “neutral” information intermediary. While it displays the “basic data” along with the rating of the doctor concerned to internet users seeking a doctor's profile for non-paying doctors, and offers them information on locally competing doctors via the displayed “Advertisement” banner, it does not permit such advertising notices informing about local competition on the profile of its “Premium” customers – without sufficiently disclosing this to the internet user there. However, if the defendant, in this manner, retreats from its role as a “neutral” information intermediary in favor of its advertising offer, then it can only assert its legal position, based on the fundamental right to freedom of opinion and the media (Art. 5 para. 1 sentence 1 GG, Art. 10 ECHR), with less weight against the plaintiff's right to protection of her personal data (right to informational self-determination, Art. 2 para. 1 in conjunction with Art. 1 para. 1 GG, Art. 8 para. 1 ECHR). This leads here to a preponderance of the plaintiff's fundamental rights position, so that she must be granted a “legitimate interest in the exclusion of the storage” of her data (§ 29 para. 1 sentence 1 no. 1 BDSG).

Federal Court of Justice, Judgment of February 20, 2018 – VI ZR 30/17