According to the judgement of the Higher Regional Court of Cologne (OLG Köln) handed down in the main proceedings on 3 September 2008, the grading of teachers on the internet continues to be permitted.
The 15th Civil Senate rejected the appeal of a grammar school teacher who wanted to have the Cologne operators of the internet forum "Spickmich.de" prohibited by legal action from publishing data concerning her, such as her name, subjects, quotations and grades, on the aforementioned website (case number OLG Köln 15 U 43/08). The teacher thus lost again before the Higher Regional Court, after the same senate had already dismissed her appeal in the preliminary injunction proceedings on 27 November 2007. Today's judgement confirms the previous instance in its entirety and also follows the same line of reasoning as in November.
On the so-called community portal "Spickmich.de", pupils can rate their teachers in various categories, such as "professionally competent," "well prepared," "fair grades" etc., but also "cool and funny," "human" or "popular". At the time, the plaintiff teacher had received an overall grade of 4.3, whereupon in May 2007 she applied for an injunction against the publication of her name and the subjects she taught and, after their rejection, pursued her claims in "normal" legal proceedings, claiming a violation of the Federal Data Protection Act as well as the violation of the general right of personality.
In its reasoning, the Senate stated that there was no unlawful interference with the plaintiff's general right of personality. All the evaluation criteria of the school portal "spickmich.de" represented value judgements, so that the forum fell within the scope of protection of the fundamental right to freedom of opinion according to Article 5 (1) of the Basic Law.
Within the framework of the balancing of the freedom of opinion and the personal rights of the teacher required by this, there was no inadmissible encroachment on the general personal rights of the secondary school teacher. As far as job-related criteria such as "good teaching", "professionally competent", "motivated", "fair grades", "fair examinations" and "well prepared" were concerned, the teacher's appearance or general personality was not affected, but only the concrete exercise of her professional activity. This was not connected with an insulting defamatory criticism; even taking into account the mention of the name, the teacher was not pilloried by the pupil's evaluation. In its consideration, the Senate again took into account that there was no "unrestricted public" rating of teachers on "spickmich.de" and that there was no general access to these ratings. The names and evaluations of the teachers could not be found via internet search engines, but were only listed under the individual schools, which could essentially be entered and accessed by interested pupils or parents. In view of the access criteria and further safeguards, the Senate considers the risk of manipulation of the evaluation to be low. Also the more personal evaluations on the criteria "cool and funny", "human", "popular" and "exemplary appearance" are ultimately neither to be classified as an attack on human dignity nor as defamation. The focus was not on defamation or disparagement of the person as the aim of the statement, but on the evaluation of qualities which were in any case also reflected in the school sphere of activity. In the diction and formulation of the criteria, the language used by pupils and young people was also to be taken into account, so that the assessment of the characteristic "cool", which was contrasted with the term "embarrassing", did not cross the line into defamation.
The fundamental right of freedom of opinion protects the expression of opinion irrespective of whether the statement is rational or emotional, justified or groundless and whether it is considered by others to be useful or harmful, valuable or worthless. Even the anonymity of the evaluation does not make it inadmissible, as the Senate further holds; it is inherent in the medium of the internet. Opinions that are merely expressed under an e-mail address or anonymously on the internet also enjoy the protection of Article 5 of the Basic Law. In the school sector, too, the relationship of superiority between teachers and pupils suggests that the latter would refrain from making their opinions known if their real names were published, for fear of negative consequences, which would run counter to the freedom of the quite desirable broader communication process on the quality of educational work. The - correct - posting of quotes from the teacher in the evaluation module was also permitted, similar to their reproduction in school newspapers. Quotations by the evaluated teachers were made to third parties in their official capacity and within the framework of their professional practice. They were therefore statements that did not fall within the private sphere, but were to be allocated to the social sphere within the scope of their professional activities.
Finally, the plaintiff could not derive claims for injunctive relief from the right to informational self-determination or the Federal Data Protection Act (BDSG). According to the plaintiff, the name, school and subjects were not particularly sensitive data; moreover, they had been taken from a generally accessible source, namely the school's homepage.
The Senate allowed the appeal against its judgement because the case was of fundamental importance and it considered a decision by the Federal Supreme Court to be necessary to unify the case law.
Source: Press release of the Cologne Higher Regional Court of 3.9.2008, Department for Press and Public Relations Hubertus Nolte, 50468 Cologne, P.O. Box 10 28 45, Telephone: (0221) 7711 - 0, Extension: (0221) 7711 - 350, Fax: (0221) 7711 - 861, E-mail: pressestelle@olg-koeln.nrw.de, Internet: www.olg-koeln.nrw.de
(c) 2008 Goldberg Attorneys at Law Michael Ullrich, LL.M. (Information Law)
E-mail: mailto:m.ullrich@goldberg.de
