BGH - VI ZR 54/21

BGH - VI ZR 54/21
Court:	BGH (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 6(1)(f) GDPR Article 17(1) GDPR Article 11 CFREU Article 16 CFREU
Decided:	13.12.2022
Published:
Parties:	jameda GmbH
National Case Number/Name:	VI ZR 54/21
European Case Law Identifier:	ECLI:DE:BGH:2022:131222UVIZR54.21.0
Appeal from:	OLG München OLG München, Urteil vom 02.02.2021 18 U 735/20
Appeal to:
Original Language(s):	German
Original Source:	Juris Bundesgerichtshof (in German)
Initial Contributor:	Sara Horvat

The German Supreme Court confirmed the decisions of lower courts by holding that a medical practitioners did not have a right to deletion against a compare-and-review which had published a profile on them. The processing was lawful pursuant to Article 6(1)(f) GDPR since the controller's right to business and the public's freedom of expression outweighed the data subject's interest in data protection.

English Summary

Facts

The controller is a private company, running a compare-and-review website for healthcare practitioners. The data subject is a dentist, whose personal data (name, academic title, field of practice, address, and telephone number of the office) was published through an online profile of her on the controller's website. The data subject did not consent to this data processing. Pursuant to Article 17(1)(d) GDPR, the data subject requested that the profile on the website of the controller should be deleted.

The controller did not comply with the request. Consequently, the data subject brought the case to court.

The courts of first and second instances held that, in view of the current design of the rating portal, the data subject was neither entitled to the deletion of the profile nor to an injunction against the publication of such a profile. There was no unlawful data processing by the controller since the weighting of the conflicting interests required by Article 6(1)(f) GDPR was in favour of the controller.

The data subject decided to appeal the case again on the same grounds. This time to the German Supreme Court-

Holding

The German Supreme Court confirmed the decision of the previous courts.

It held that the data processing was lawful upon Article 6(1)(f) GDPR since the interests of the data controller and the general public outweighed the interest of the data subject. By collecting, storing and passing on the ratings, the data controller provides the public using the portal with an insight into personal experiences and subjective assessments of patients of the respective practitioner, which readers can take into account in their own choice.

Moreover, the controller's business model was supported by the right to conduct a business pursuant to Article 16 CFR. Additionally, pursuant to Article 11 CFR, the general public has a right and interest to freely express their opinions.

The court also held that the rating of practitioners was lawful since, in their professional sphere, practising healthcare professionals must be prepared for observation of his conduct by the wider public because of the effects his activity has on others, and for criticism of his performance.

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

ECLI:DE:BGH:2022:131222UVIZR54.21.0
FEDERAL COURT OF JUSTICE
IN THE NAME OF THE PEOPLE
VERDICT
VI ZR 54/21 Announced on:
December 13, 2022
Böhringer chard
Judicial Inspector
as a clerk
the office
Reference book: yes
BGHZ: no
BGHR: yes
GDPR Article 6 Paragraph 1 Letter f, Article 17 Paragraph 1
On the requirements for a claim for deletion and omission of
Processing of personal data in a doctor search and application
information portal on the Internet (www.jameda.de).
BGH, judgment of December 13, 2022 - VI ZR 54/21 - OLG Munich
LG Munich I
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The VI Civil Senate of the Federal Court of Justice has on the oral hearing
of December 13, 2022 by the presiding judge Seiters, the judge
a Dr. Oehler and Müller and the judges Dr. Klein and Böhm
recognized for right:
The plaintiff's appeal against the judgment of the 18th civil senate of the
Munich Higher Regional Court of February 2, 2021 is withdrawn
grasslands.
The plaintiff bears the costs of the appeal proceedings.
By rights
facts:
The parties argue about the admissibility of recording personal
ner data of the plaintiff pediatrician in an Internet portal.
The defendant operates a medical
search and rating portal. In the portal information about doctors and
Carriers of other health professions can be accessed free of charge. To every doctor becomes
- even without his instigation or consent - on the website on the
Based on publicly accessible data, a so-called basic profile
held, in the context of which name, possibly academic degree, field of
such as the address and telephone number of the practice. The defendant
offers doctors and providers of other medical professions two paid "premium packages"
with which you can complete your profile with a portrait photo, further pictures and additional
can provide information. On the premium profiles is the
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"Gold customer" or "Platinum customer" message is displayed and the immediate
bar next to it, the "i" can be called up as a mouseover text
fen: "Dr. med. XX is a paying jameda customer in order to offer patients extensive
to get a lot of information about yourself (e.g. through pictures and texts). This has no
flow on the reviews of Dr. medical XX or placement in the jameda
Physicians lists." In the field for the portrait photo is a gray male or female
silhouette as a profile picture if the doctor concerned does not have a "Premium
package". All profiles can be viewed by every Internet user. The users
the possibility is offered of the services of the listed doctors on their
to evaluate respective profiles. The reviews can be in the form of free text
comments and/or by awarding grades in specified categories.
be taken. Overall grades, individual grades and free text comments
displayed on the doctors' profiles.
The plaintiff is a pediatrician established in R.. She
has not booked a paid package with the defendant and not included in the
acceptance of their data in the portal of the defendant. She takes the
sued for the deletion of the profile published about her, which in particular
special consists of the following entries:
"Dr. med. [first name surname of the plaintiff]
doctor, paediatrician
Further training: general practitioner, basic psychosomatic care
[address of the practice]
Telephone [phone number of the plaintiff]
Homepage: not yet deposited
What Patients Say About Dr. [Applicant's last name]
grading scale...
Reviews ...
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Furthermore, the plaintiff requests the omission of the publication of a
their profile on the website www.jameda.de, if this is specified in Art
happens, as happened on November 24, 2020, the day of the oral
action before the Court of Appeal, from the then current profile of the plaintiff
captured screenshots. The profile listed there contained
next to a gray silhouette that says "Premium customers can
deposit a profile picture", the name of the plaintiff, the academic degree, the
Designation doctor, paediatrician, practice address and telephone number, the
Evaluation grade 2.0, the indication that there were 42 evaluations, the number of
Calls, the office hours of the practice, a column "Find similar practitioners"
with the links "[Name of the city where the plaintiff has her practice]", "Paediatricians
& youth medicine..." and "paediatricians" and at the end another column "Pas-
send articles from our jameda premium customers" with links to texts with the
Heading "Clubfeet in Children: Causes, Symptoms and Treatment" so-
such as "C. Junior Syrup: Natural Cure for Colds".
The district court dismissed the lawsuit, which resulted in her injunctive relief
referred to the profile at that time, which was also recorded in a screenshot,
grasslands.
In response to the plaintiff's appeal, the Higher Regional Court ruled that
General judgment only amended to the effect that the plaintiff pre-trial
legal fees incurred in the amount of €1,242.84 plus interest
were spoken. Otherwise, it dismissed the lawsuit and continued the
pending appeal dismissed. With the Court of Appeal approved
Revision pursues the plaintiff asserted in the court of appeal
Requests for deletion and injunctive relief.
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Reasons for decision:
I
The court of appeal stated that the plaintiff with regard to the
current design of the rating portal, there is no right to deletion
of the profile published about you or to refrain from publication
of such a profile. Unlawful data processing by the
Defendant is not present, according to Art. 6 Para. 1 Sentence 1 Letter f DS-GVO
given consideration of the conflicting interests falls in favor of the defendant
out. However, the plaintiff can claim compensation for pre-trial attorney fees
demand, because at the time of the pre-judicial assertion of the
claim with a letter from a lawyer dated September 19, 2018
corresponding claim due to unlawful data processing
been. The defendant is a legal entity under private law
responsible within the meaning of Art. 4 No. 7 DS-GVO and process personal data
Plaintiff's data in a file system. An unrestricted application
the basic data protection regulation is also not inferior to the media privilege
Art. 85 (2) GDPR in conjunction with Art. 38 BayDSG. There is no data transfer
working for "journalistic purposes" within the meaning of the aforementioned regulations
given. The plaintiff has no claim against the defendant under Article 17
Para. 1 sentence 1 letter d DS-GVO to delete the profile published about you
because the data in question had been lawfully processed. After
Art. 6 para. 1 sentence 1 letter f DS-GVO is the processing of personal data
Data lawfully, insofar as this is necessary to protect the legitimate interests of the
responsible or a third party and not the interests or
fundamental rights and freedoms of the persons concerned prevail. required
A comprehensive proportionality test and consideration is therefore essential
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the conflicting interests of the plaintiff on the one hand and the
complained and portal users on the other hand. Only those are decisive here
Union Fundamental Rights. As part of the consideration to be made, the
based on the principles as laid down by the Federal Court of Justice in its decision
statement of February 20, 2018 and specified (VI ZR 30/17,
BGHZ 217, 340 para. 14 et seq.). The then to § 29 paragraph 1 sentence 1 no. 1 BDSG a.F.
The principles developed can be referred to within the framework of Art. 6 Para. 1 Sentence 1
letter f DS-GVO transfer to be carried out. The federal
hof is therefore primarily present in the context of the weighing to be carried out
up, whether the defendant through the design of their portal their role as
"neutral" information mediator in detail leave the fact that they through
the type of advertising offered grants hidden advantages to individual physicians.
For this, it cannot be regarded as imperative that the profile
of non-paying doctors as an advertising platform for paying premium customers
will be used. The relevant consideration is based on the current
design of the rating portal does not lead to a predominance of fundamental rights
positions of the plaintiff. It comes to the question of a right to erasure
on whether the processing is currently, i.e. at the time of the examination of the
Obligation to delete and thus at the time of the last oral hearing
be unlawful. The basis of the test is therefore the current portal design
and thus the current design of the individual doctor profiles at the time of the
oral hearing on November 24, 2020. The defendant procured payment
lending premium customers by publishing their specialist articles on the profile
the plaintiff no hidden advertising advantages within the meaning of the case law of
federal court. The technical articles are now under the
writing "Matching articles from our jameda premium customers", they would also
also displayed on the profiles of premium customers. It will be sufficient
clear that it is about the use of paid services.
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By clarifying the description of the premium customers in the mouseover text
could not give the impression that the status as a premium customer
related to the number of profile views made on the profile of the non-
paying doctors in the same place as the reference to the status as a premium
customer would be displayed on the profile of paying doctors. The paying customers
the opportunity, which is different from that granted to the plaintiff, to deposit a
trait picture does not lead to an injury in the current display either
the "neutral" intermediary role of the defendant, because on the profile of the basic customer
instead of a photo, a gray silhouette appears with the note "Pre-
mium customers can deposit a profile picture".
made it clear that this is the use of paid services
act. The same applies with regard to the exclusively premium customers
cleared opportunity to add further information to their profile, such as individual
ell content about their services and treatment focuses as well as pictures
present. In this respect, too, the new design is sufficiently open
placed that the differences in tread design on the drawdown
paid services by individual doctors. Alone
the remaining - but sufficiently disclosed - "attractiveness contrast" between
between a premium profile and a basic profile can be based on the
Jurisdiction of the Federal Court of Justice on the granting of concealed
benefits shall not be considered sufficient to establish a preponderance
to affirm the fundamental rights position of the plaintiff.
The plaintiff is not entitled to omission of the publication
of a profile concerning them based on the two screenshots dated
November 24, 2020 to. From the screenshots go the complained of by the plaintiff
Representation of their profile picture as a silhouette and the publication of
Specialist articles on their profile under the heading "Matching articles of our
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jameda premium customers". An unlawful data processing lies
insofar not before.
II.
The admissible revision of the plaintiff is unsuccessful in the matter. The
As a result, the Court of Appeal rightly accepted the asserted claims
denied to deletion and omission.
1. The requirements resulting from Art. 17 Para. 1 DS-GVO
There are no claims for deletion.
a) The temporal, factual and spatial scope of application of the data
Basic Protection Ordinance (cf. Senate judgment of July 27, 2020 - VI ZR
405/18, BGHZ 226, 285 Rn. 11 et seq.) has been opened.
b) The applicability of Art. 17 DS-GVO is not subject to Art. 38 Para. 1
BayDSG in connection with Art. 85 Para. 2 DS-GVO (so-called "media privacy
leg") (cf. Senate judgments of October 12, 2021 - VI ZR 488/19, NJW
2022, 1098 para. 12 ff. and VI ZR 489/19, BGHZ 231, 263 para. 12 ff.; from 15 Feb-
ruar 2022 - VI ZR 692/20, NJW-RR 2022, 692 para. 10 ff.).
c) There is no reason for deletion in accordance with Art. 17 Para. 1 Letter d GDPR
before, because the data processing opposed by the plaintiff measured against Art. 6
Para. 1 DS-GVO is not unlawful. The Court of Appeal's decision
at least withstands the legal examination in terms of the result.
aa) According to Art. 6 Para. 1 Sentence 1 DS-GVO, the processing of personal
The data collected is only lawful if at least one of the items listed in Art. 6 Para. 1 Sentence 1
Letters a to f DS-GVO are met. In the event of a dispute, the
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Plaintiff neither in the processing of her personal data on the port
tal of the defendant (letter a), nor are those in letters b to e
mentioned conditions are met. The claimant's
fought processing of their data on the defendant's portal under Art. 6
Paragraph 1 sentence 1 letter f DS-GVO therefore only if the processing for
Protection of the legitimate interests of the defendant or a third party required
Liable, unless the interests or fundamental rights and freedoms of the
Plaintiff as the data subject who requires the protection of personal data
other, predominate. According to this, the data processing is subject to three cumulative
suspensions permitted: firstly, by the defendant or by a third party,
in this case the portal users, a legitimate interest is perceived;
secondly, the processing of the personal data for the realization
verification of the legitimate interest may be necessary and thirdly, the interests
ress or fundamental rights and fundamental freedoms of the plaintiff (hereinafter also
collectively referred to as the "interests" of the plaintiff) do not prevail
(ECJ, GRUR 2021, 1067 para. 106 - Mircom/Telenet).
bb) These requirements are in terms of the plaintiff with the
Objective of deleting your profile has been fulfilled.
(1) Academic degree, name, field of study and practice address of the applicant
low represents "personal data" within the meaning of Art. 4 No. 1 DS-GVO.
As the defendant collects the data as part of its portal operation,
arranges, saves and discloses to the users of their portal, "processes
tet" this data within the meaning of Art. 4 No. 2 DS-GVO.
(2) With the aforementioned data processing, the defendant takes both
own legitimate interests as well as legitimate interests of the users of your
portal true.
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(a) With the rating portal operated by it and the (if possible) fully
The defendant procures the constant recording of all doctors who use their portal
public first an orderly overview of who and where
which medical services are offered. With the collection, spoke-
It transmits the ratings to those using the portal
public an insight into personal experiences and sub-
objective assessments by patients of the respective doctor, which the respective patient
ser (hereinafter "passive user" in contrast to the evaluating "active
user") can take into account when choosing his own doctor. The interest of
The defendant in the operation of the portal thus initially falls within the scope of protection
of Art. 11 para. 1 of the - here decisive (cf. BVerfGE 152, 216 para. 33 ff.
- Right to be Forgotten II; also Senate judgment of July 27, 2020 - VI ZR 405/18,
BGHZ 226, 285 para. 25) - Charter of Fundamental Rights of the European Union
(GRCh), which according to its wording is not just the expression of its own
opinion, but also the passing on of other people's opinions and information
protects. In addition, the portal operation, with which the defendant is one of
fundamentally approved by the legal system and desired by society
Function fulfilled (cf. Senate judgments of October 12, 2021 - VI ZR 488/19, NJW
2022, 1098 paragraph 28; from January 14, 2020 - VI ZR 497/18, ZUM-RD 2020, 186
Paragraph 46 on www.yelp.de; of February 20, 2018 - VI ZR 30/17, BGHZ 217, 340
paragraph 15; of September 23, 2014 - VI ZR 358/13, BGHZ 202, 242 para. 39 f.; BGH,
Judgment of March 19, 2015 - I ZR 94/13, GRUR 2015, 1129 para. 37), especially
in its form as a business model protected by Art. 16 GRCh
commercial activity of the defendant. For these reasons alone, the
operation of the portal in the legitimate interest of the defendant; with the associated
The processing of the personal data of the plaintiff thus takes it away
own legitimate interests.
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