DSB (Austria) - DSB-D213.95

DSB - DSB-D213.953
Authority:	DSB (Austria)
Jurisdiction:	Austria
Relevant Law:	Article 6(1)(f) GDPR Article 11 CFR
Type:	Complaint
Outcome:	Rejected
Started:
Decided:
Published:
Fine:	None
Parties:	n/a
National Case Number/Name:	DSB-D213.953
European Case Law Identifier:	n/a
Appeal:	n/a
Original Language(s):	German
Original Source:	Data Protection Authority of Austria (in DE)
Initial Contributor:	ML

The DSB held that the processing of teacher data of an App called "Lernsieg" to evaluate teachers is lawful on the basis of Art. 6 para. 1 lit. f GDPR, i.e. that the interests of the general public and in particular of the pupils in the processing in question outweighed the interests of the teachers.

English Summary

Facts

The Lernsieg app is an evaluation platform on which students can evaluate their school and teachers according to a predefined points system. The individual criteria that can be evaluated include (currently): teaching, respect, patience, explanatory style, personality, fairness, motivation and organisation. The operator of the app (hereinafter: "the data controller") relied on the legal basis pursuant to Art. 6 para. 1 lit. f GDPR (legitimate interests) with regard to the processing of teacher data (name, department, related assessments). The controller has implemented several mechanisms to counteract the effect of pillorying.

Dispute

The data controller argued that the processing was in pursuit of the interest of exercising the right to freedom of expression and information pursuant to Art. 11 EU CFR. In this way, increased transparency in the field of education was to be achieved and the quality of education in the classroom was to be subject to comprehensible control. From the point of view of the persons concerned, it had to be taken into account that teachers had to expose themselves to anonymous evaluation by means of the data processing in question, that in principle also non-pupils of the respective teacher could give an evaluation, that this evaluation sometimes did not correspond to the true facts (for example, unobjective evaluations).

Holding

The processing of teacher data was lawful on the basis of Art. 6 para. 1 lit. f GDPR, i.e. that the interests of the general public and in particular of the pupils in the processing in question outweighed the interests of the teachers. The right to freedom of expression and information is not limited to objectifiable, generally valid value judgments. The present teacher evaluation concerns the professional activity of the teacher. The professional group of teachers must therefore be prepared for the observation of their behaviour by a broad public and for criticism of their performance. In the present case, the professional sphere is affected, which, in contrast to the intimate sphere, enjoys less protection.

Comment

This summary of the case is based on a summary published by the Data protection Authority in their newsletter.

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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.

Information on the Lernsieg teacher evaluation platform The admissibility of the "Lernsieg" app under data protection law was checked as part of the official examination procedure for the number DSB-D213.953. The Lernsieg app is an evaluation platform on which students can evaluate their school and teachers according to a predefined points system.  The individual criteria that can be evaluated include (currently): teaching, respect, patience, explanatory style, personality, fairness, motivation and organisation. The operator of the app (hereinafter: "the data controller") relied on the legal basis pursuant to Art. 6 para. 1 lit. f GDPR (legitimate interests) with regard to the processing of teacher data (name, department, related assessments), which is why a weighing of interests had to be carried out. The data controller argued that the processing was in pursuit of the interest of exercising the right to freedom of expression and information pursuant to Art. 11 EU CFR In this way, increased transparency in the field of education was to be achieved and the quality of education in the classroom was to be subject to comprehensible control.  From the point of view of the persons concerned, it had to be taken into account that teachers had to expose themselves to anonymous evaluation by means of the data processing in question, that in principle also non-pupils of the respective teacher could give an evaluation, that this evaluation sometimes did not correspond to the true facts (for example, unobjective evaluations) and that these evaluations were disclosed to the public and could lead to a pillory effect. In this respect, it was first of all to be noted that anonymous use is inherent in the Internet and that the obligation to commit oneself by name to a certain evaluation would create the danger that the evaluator, for fear of reprisals or other negative consequences, would decide not to express his opinion at all. In the DSB's view, such self-censorship is not compatible with Article 11 EU CFR. Similarly, the right to freedom of expression and information is not limited to objectifiable, generally valid value judgments. in line with the DSB's stRsp on physician evaluation platforms (cf. the decision of 15 January 2019, GZ DSB-D123. 527/0004-DSB/2018 mwN), it was also to be noted that the present teacher evaluation concerns the professional activity of the teacher, i.e. an area in which personal development takes place in contact with the environment from the outset. The professional group of teachers must therefore be prepared for the observation of their behaviour by a broad public and for criticism of their performance. In the present case, the professional sphere is affected, which, in contrast to the intimate sphere, enjoys less protection, and the controller has implemented several mechanisms to counteract the effect of pillorying: For example, it is not possible for a teacher to be criticised for his or her behaviour. In order to protect against abuse, for example, it is necessary that the person making the assessment first verifies himself/herself via a telephone number (which is not stored or used in any other way) ("overcoming an inhibition threshold"), a certain minimum number of assessments is required before this is displayed, the submission of a personal, sometimes insulting comment is not possible (whereby, in return, the assessment can be justified in more detail in the form of sub-categories) or a report and change button for teachers is built in.   The controller has also not included elementary and special schools in the app and has thus linked the possibility of evaluation to a certain minimum age or mental development. However, there is an indirect choice of teacher insofar as parents (in agreement with their children, i.e. the pupils) can choose the school and get a corresponding picture of the teachers working there, and for certain subjects (e.g. optional subjects) there is a free choice of teacher. The concrete teacher evaluation is also relevant for the assessment of the selection of special schools (e.g. whether the school's subject focuses are implemented with the corresponding quality).  Furthermore, teacher evaluations can be a reason for students or parents to seek a conversation with the teacher (or vice versa). In the opinion of the DSB, the fact that this is a comparatively new app and that it may not yet be of great factual importance for the school choice of the general population is not decisive.  Evaluation platforms can offer added value for society in the form of easily accessible information, whereby each evaluation platform requires a certain start-up time to achieve a corresponding relevance. Against the background of these considerations, the DSB came to the conclusion that the processing of teacher data on the basis of Art. In view of these considerations, the DSB came to the conclusion that the processing of teacher data was lawful on the basis of Art. 6 para. 1 lit. f GDPR, i.e. that the interests of the general public and in particular of the pupils in the processing in question outweighed the interests of the teachers. For the sake of completeness, it should be noted that the processing of the data of the evaluators (children and young people) was also reviewed and no objections were raised in this respect.  In particular, it was established on the basis of the investigation that the evaluators' data will not be used in any form (e.g. for advertising purposes) or transferred to third parties. The DSB will, however, continue to monitor the development of the Lernsieg app and reserves the right to initiate a further review procedure in the event of such commercialisation.