The parties dispute the inclusion of the plaintiff doctor in the defendant's doctor rating portal.
The defendant operates a doctor search and doctor rating portal under the internet address www.jameda.de, on which information about doctors and carriers of other medical professions can be accessed free of charge. The so-called "basic data" of a doctor are offered as the defendant's own information. This includes - as far as known to the defendant - academic degree, name, speciality, practice address, further contact data as well as consultation hours and similar practice-related information. In addition, ratings can be retrieved which users have submitted in the form of a grading system, but also free text comments. The defendant offers doctors the conclusion of contracts for a fee, in which their profile - unlike the basic profile of non-paying doctors - is provided with a photo and additional information. In addition, when the profile of a non-paying doctor is called up, the profile pictures of direct competitors of the same speciality in the local area are displayed with distance information and grades. In contrast, the defendant does not display competitors on the profiles of doctors who have registered with it for a fee and booked a "premium package".
The plaintiff is a practising dermatologist and allergist. On the defendant's portal, she is listed as a non-payer against her will without a picture with her academic degree, her name, her specialisation and her practice address. When her profile is called up on the defendant's portal, other (paying) doctors with the same speciality and with a practice in the vicinity of the plaintiff's practice appear under the heading "Dermatologists (dermatologists) (with picture) in the vicinity". In addition to the grade of the respective other doctor, the respective distance between his practice and the plaintiff's practice is shown. The plaintiff received ratings several times in the past. In 2015, she objected to a total of 17 retrievable ratings on the defendant's portal through her former legal representatives. After their deletion, the plaintiff's overall rating rose from 4.7 to 1.5.
In the present action, the plaintiff demands from the defendant the complete deletion of her entry in www.jameda.de, the deletion of her data published on the website www.jameda.de, an injunction against the publication of a profile concerning her on the aforementioned website as well as compensation for pre-court legal fees. The Regional Court dismissed the action. The plaintiff's appeal was unsuccessful. In its appeal, which was allowed by the Court of Appeal, the plaintiff continued to pursue its claims.
The Senate's decision:
The appeal was successful. The senate upheld the action.
Pursuant to section 35, paragraph 2, sentence 2, no. 1 of the BDSG, personal data must be deleted if its storage is inadmissible. This was the case here.
In its judgment of 23 September 2014 - VI ZR 358/13 (BGHZ 202, 242), the Senate already decided in principle for the rating 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 one at hand in one crucial point. With the practice described above, which is linked to the rating portal, the defendant abandons its position as a "neutral" information intermediary. Whereas in the case of non-paying doctors it displays the "basic data" together with an evaluation of the doctor in question to the internet user visiting a doctor's profile and offers him information on locally competing doctors by means of the crossbar "advertisement", it does not allow such advertising references informing about the local competition on the profile of its "premium" customer - without sufficiently disclosing this to the internet user there. If, however, the defendant refrains from its role as a "neutral" information provider in favour of its advertising offer in this way, then it can protect its legal position based on the fundamental right of freedom of opinion and freedom of the media (Article 5 (1) sentence 1 GG, Article 10 ECHR) against the plaintiff's right to protection of its personal data (right to informational self-determination, Article 2 (1) in conjunction with Article 1 (1) of the Basic Law). In this case, this leads to a preponderance of the right of the plaintiff against the right to protection of her personal data (right to informational self-determination, Article 2.1 in conjunction with Article 1.1 of the Basic Law, Article 8.1 of the European Convention on Human Rights). This leads to a preponderance of the plaintiff's fundamental right position here, so that she is to be granted an "interest worthy of protection in the exclusion of the storage" of her data (§ 29 para. 1 sentence 1 no. 1 BDSG).
BGH, Judgment of 20 February 2018 - VI ZR 30/17
Regional Court of Cologne of 13 July 2016 - 28 O 7/16 -
Cologne Higher Regional Court of 5 January 2017 - 15 U 121/16 - AfP 2017, 164
Source: BGH press release of 20.02.2018
GoldbergUllrich Attorneys at Law 2018
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
BGH, Judgment of 20 February 2018 - VI ZR 30/17