According to the judgment of the Higher Regional Court of Cologne (OLG Cologne) announced on September 3, 2008, in the main proceedings, the grading of teachers on the internet remains permissible.
The 15th Civil Senate rejected the appeal of a high school teacher who sought to legally prohibit the Cologne operators of the internet forum "Spickmich.de" from publishing data concerning her, such as name, subjects taught, quotes, and grades, on the aforementioned website (file reference OLG Köln 15 U 43/08). Consequently, the teacher was again unsuccessful before the Higher Regional Court, after the same Senate had already dismissed her appeal in the preceding preliminary injunction proceedings on november 27, 2007. Today's judgment fully confirms the lower court's decision, and its reasoning aligns with the direction already outlined in november.
On the so-called community portal "Spickmich.de," students can rate their teachers across various categories, such as "professionally competent," "well-prepared," "fair grades," etc., as well as "cool and funny," "human," or "popular." The plaintiff teacher had received an overall grade of 4.3 at the time, prompting her in May 2007 to apply for a preliminary injunction against the publication of her name and the subjects she taught. Following its rejection, she pursued her claims through "normal" litigation, asserting a violation of the Federal Data Protection Act and an infringement of her general right to personality.
In the reasoning of the judgment, the Senate states that there was no unlawful interference with the plaintiff's general right to personality. All evaluation criteria of the student portal "spickmich.de" constituted value judgments, meaning the forum falls within the scope of protection of the fundamental right to freedom of expression according to Article 5 Paragraph 1 of the Basic Law.
In the context of the necessary balancing of freedom of expression against the teacher's personal rights, the outcome indicates no unlawful infringement of the high school teacher's general personal rights. Regarding job-related criteria such as 'good teaching,' 'professionally competent,' 'motivated,' 'fair grades,' 'fair exams,' and 'well-prepared,' the teacher is not affected in her appearance or general personality, but solely in the specific exercise of her professional activity. This does not constitute insulting defamatory criticism; even considering the naming, the teacher is not publicly shamed by the student evaluations. In its assessment, the Senate again considered that 'spickmich.de' does not allow for 'unrestricted public' evaluation of teachers, nor is there general access to these evaluations. Teachers' names and evaluations cannot be found via internet search engines; they are merely listed under individual schools, which are primarily accessed and entered by interested students or parents. The Senate considers the risk of manipulation of evaluations to be low, given the access criteria and additional safeguards. Even the more personal evaluations concerning criteria such as 'cool and funny,' 'human,' 'popular,' and 'exemplary conduct' are ultimately not to be classified as an attack on human dignity or as defamation. The primary focus is not the defamation or denigration of the person as the aim of the statement, but rather the evaluation of characteristics that are, in any case, reflected within the school environment. In this context, the diction and formulation of the criteria must also consider the language usage of students and young people, such that even the evaluation for the characteristic 'cool,' which is contrasted with the term 'embarrassing,' does not cross the line into defamation or denigration.
The fundamental right to freedom of expression protects the expression of opinion, irrespective of whether the statement is rational or emotional, substantiated or unfounded, or whether it is considered useful or harmful, valuable or worthless by others. Furthermore, the anonymity of the evaluation does not render it inadmissible, as the Senate maintains; it is inherent to the internet medium. Opinions submitted online, whether solely under an email address or anonymously, also enjoy the protection of Article 5 of the Basic Law. Moreover, in the school environment, due to the superior-subordinate relationship between teacher and student, it is plausible that students would refrain from expressing their opinions if their real names were published, fearing negative consequences, which would counteract the freedom of a desirable broader communication process regarding the quality of educational work. The – correct – inclusion of teacher quotes in the evaluation module is also permissible, similar to their reproduction in student newspapers. Quotes from evaluated teachers are made in an official capacity and within the scope of their professional practice to third parties. These are therefore statements that do not fall under the private sphere but are rather attributable to the social sphere within the professional scope.
Finally, the plaintiff cannot derive claims for injunctive relief from the right to informational self-determination or the Federal Data Protection Act (BDSG). The disclosure of name, school, and subjects taught does not constitute particularly sensitive data; moreover, this information was taken from a publicly accessible source, namely the school's homepage.
The Senate granted leave to appeal against its judgment because the case is of fundamental importance and it deems a decision by the Federal Court of Justice necessary to unify legal precedent.
Source: Press release from the OLG Cologne of 3.9.2008, Head of Press and Public Relations Hubertus Nolte, 50468 Cologne, Postfach 10 28 45, Telephone: (0221) 7711 – 0, Extension: (0221) 7711 – 350, Telefax: (0221) 7711 – 861, E-Mail: pressestelle@olg-koeln.nrw.de, Internet: www.olg-koeln.nrw.de
(c) 2008 Goldberg Attorneys-at-law Attorney Michael Ullrich, LL.M. (Information Law)
Email: mailto:m.ullrich@goldberg.de
