BGH - VI ZR 60/21
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| BGH - VI ZR 60/21 | |
|---|---|
 | |
| Court: | BGH (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 6(1)(f) GDPR |
| Decided: | 13.12.2022 |
| Published: | |
| Parties: | www.jameda.de |
| National Case Number/Name: | VI ZR 60/21 |
| European Case Law Identifier: | ECLI:DE:BGH:2022:131222UVIZR60.21.0 |
| Appeal from: | OLG München (Germany) 18 U 7246/19 |
| Appeal to: | Not appealed |
| Original Language(s): | German |
| Original Source: | BGH (Germany) (in German) |
| Initial Contributor: | mg |
The German Supreme Court held that an online platform collecting and publishing personal data of medical doctors in connection with user reviews does not violate the GDPR.
English Summary
Facts
The controller managed a website – www.jameda.de – where personal data of doctors’ where collected and made available to internet users. These data included at least: name, academic degree and specialization of the practitioners, as well as professional addresses and telephone numbers. Data were processed without data subjects’ consent. The controller also offered doctors the option to add further information to their basic profile by paying a price. This optional service included the possibility to upload pictures, statements, articles, videos etc. Both basic and “premium” profiles enabled users to anonymously publish their “reviews”, which were attached to the doctor’s profile and publicly visible.
The data subject was a doctor reviewed on the website, but they never consented to the processing of their personal data by the controller. He brought several allegations against the controller and requested a civil court to order the controller to erase the profile and stop several processing operations.
The Landesgericht München (Regional Court of Munich) declared the processing unlawful and imposed on the controller the erasure of the profile insofar as personal data of the data subject were associated with user reviews. However, the data subject appealed the part of this judgement that was not favourable to them. In particular, the data subject asked the court of appeal to check whether the controller violated the GDPR by implementing for premium profiles a design that infringed the data subject’s fundamental rights. More specifically, in the data subject’s view, services offered to paying customers indirectly put the data subject in a position of disadvantage, as basic profile holders were not allowed to personalise their page. In addition, the appeal concerned the fact that the data subject’s basic profile was used to display advertisements regarding other doctors who decided to subscribe to the “premium” option, again damaging the data subject’s professional activity.
The controller also appealed.
The Oberlandesgericht München (Higher Regional Court of Munich) found that data processing, based on a legitimate interest of the controller, was outweighed by the fundamental right to data protection of the data subject. In particular, processing was unlawful insofar as the controller granted a more favorable treatment to paying customers, enabling them to personalize their profile, whereas the data subject could not. However, the Court of Appeal dismissed the argument that the controller should refrain from displaying third-party advertisements on the data subject’s personal profile, as there was no real competition between the data subject and other doctors. As a matter of fact, doctors involved had different specialisations.
Both the controller and the data subject appealed to the Bundesgerichtshof (German Supreme Court).
Holding
The Supreme Court clarified that processing in the case at issue could be solely based on legitimate interest pursuant to Article 6(1)(f) GDPR. The existence of a legitimate interest depends on 3 elements.
The first element is the legitimate interest itself, namely an interest that is rooted in the law or in a societal need. Concerning this first element, the Supreme Court held that the portal managed by the controller pursued both a controller’s interest and a general interest of the users of the platform. On the one hand, the collection of data about medical practitioners could be seen as a manifestation of the freedom of information under Article 11 of the Charter of Fundamental Rights of the EU, both in its active and in its passive dimension. As a matter of fact, the function of the website not only did not conflict with the legal system but was also socially desirable: thanks to this service, patients could better choose their doctor. The users’ right to disseminate opinions is also a fundamental one. On the other hand, running the platform was also part of the controller’s fundamental right to conduct a business, which is enshrined in Article 16 of the Charter of Fundamental Rights of the EU.
As a second step, the Supreme Court assessed whether the processing was really necessary to achieve the legitimate interest. The judges found that processing was indeed necessary to provide users with an overview of medical profession, insofar as processing was limited to the name of the doctor, their academic degree, professional information and the ratings by patients.
Thirdly and finally, a legitimate interest should not be outweighed by data subjects’ rights. The Supreme Court pointed out to the fact that in the present case, not only data protection, but also data subjects’ right for private and family life (Article 7 of the Charter of Fundamental Rights of the EU) and their right to conduct a business might be impaired.
However, the legitimate interest of controller and users prevailed. Preliminary, the court stressed that doctors shall accept the risk of receiving bad reviews by customers. Moreover, in the opinion of the Court, the possibility of using legitimate interest as a valid legal basis ultimately relied on the fact that the controller did not violate its duty of neutrality by unfairly favouring paying customers. In this sense, the mere fact that premium account holders had a privileged position was not sufficient in itself to break neutrality obligations.
What is relevant, according to the Supreme Court, is that the controller did not put pressure on the data subject by displaying on their personal page advertisements from potential competitors. This did not occur in the present case as advertisements popping up on the data subject’s profile concerned doctors whose field of specialisation was not related to the one of the data subject. Furthermore, the simple difference in the design of basic profiles and premium profiles did not entail unfair advertising operations on behalf of paying customers. According to the Supreme Court, it was clear to the average user that a difference in the layout of the profiles did not depend on the doctor’s skills, but rather on their willingness to personalise their profile on the platform. For this reason, the judges considered very unlikely the occurrence that a user, comparing basic and premium profiles, could switch to a doctor holding the latter because of the profile design alone.
In light of the above, the Supreme Court dismissed the data subject’s appeal and upheld the controller’s one.
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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.
**Injunction Claim of a Doctor Regarding the Use of His Personal Data on Jameda Portal**
**Guiding Principle**
On the prerequisites for a claim for an injunction against the processing of personal data on an internet doctor search and review portal (www.jameda.de).
**Procedural History**
previously OLG Munich, 19 January 2021, Az: 18 U 7246/19 Pre
previously LG Munich I, 6 December 2019, Az: 25 O 13978/18, Judgment
Operative Part
1. Upon the appeal of the defendant, the judgment of the 8th Civil Senate of the Higher Regional Court of Munich dated 19 January 2021 is annulled in the matter of costs and amended regarding sections I 1 a to m, I 2. The plaintiff's appeal is dismissed - also in this respect.
2. The plaintiff's appeal is dismissed.
3. Of the costs of the first-instance proceedings based on a dispute value of €56,500, the plaintiff bears 53%, the defendant 47%. The plaintiff bears the costs of the appeal proceedings and the revision proceedings based on a dispute value of €30,000 each.
By law
**Facts**
1
The parties dispute the admissibility of including the personal data of the plaintiff orthopaedist in an internet portal.
2
The defendant operates a doctor search and review portal under the internet address www.jameda.de. In the portal, information about doctors and other healthcare providers can be accessed free of charge. For each doctor, a so-called basic profile is provided on the website based on publicly accessible data, listing the name, possibly academic degree, specialty, and the address and telephone number of the practice, even without the doctor's initiation. The defendant offers two paid "premium packages" to doctors and other healthcare providers, allowing them to enhance their profile with a portrait photo, additional images, and more information. Various additional fields are available on the profile where paying customers can add more information about themselves and their practices, particularly fields for a portrait photo, practice address and website link, resume details, treatment focuses, and practice services, images of the practice, and specialist articles written by paying customers. The basic profile includes notes in the mentioned fields indicating that the respective doctor has not yet provided corresponding information or prompts them to do so. A gray silhouette of a man or woman is set as the profile picture in the portrait photo field. All profiles are accessible to any internet user without prior registration. Users can anonymously rate the services of the listed doctors on their respective profiles. Ratings can be given in the form of free-text comments and/or by assigning grades in 17 predetermined categories. Overall grades, individual grades, and free-text comments are displayed on the doctors' profiles.
3
The plaintiff is a specialist in orthopaedics and trauma surgery in a group practice. He has not booked any paid package from the defendant and has not consented to the inclusion of his data in the defendant's portal.
4
He seeks the deletion of personal data and an injunction against the publication of a profile created for him on the doctors' review portal. The District Court ordered the defendant to delete all data stored in the portal's database about the plaintiff and the ratings given about him. It further ordered the defendant to refrain from publishing a profile with the plaintiff's name and specialties, as well as the practice's address and telephone number, on which ratings by alleged patients of the plaintiff can be posted while simultaneously publishing articles by paying customers on the plaintiff's profile. The decision has become final to the extent that it was granted. Regarding twenty additional injunction requests concerning the design of the plaintiff's basic profile and deviations in the design of the premium profiles of paying customers, the District Court dismissed the claim. In his appeal, the plaintiff further opposed the publication of his profile if –
- a reference to a list of doctors for specific treatment areas is made on his profile, while such a reference is omitted on the profiles of paying customers (Request II 2),
and/or
- a reference to a list of doctors and alternative practitioners for specific treatment areas is made on his profile, where other doctors and alternative practitioners are particularly highlighted for a fee (Request II 3),
and/or
- advertising for third-party companies is displayed on his profile, while such advertising is omitted on the profiles of paying customers (Request II 4),
and/or
- paying customers are given a greater opportunity than him to specify the services they offer on their profile (Request II 5),
and/or
- paying customers are given the opportunity to upload a portrait photo on their profile, unlike him (Request II 6),
and/or
- paying customers are given the opportunity to present individual content and images on their profile, unlike him (Request II 7),
and/or
- paying customers are given the opportunity to specify and link the address of their practice website on their profile, unlike him (Request II 8),
and/or
- paying customers are given the opportunity to publish specialist articles on their profile, unlike him (Request II 9),
and/or
- paying customers are given the opportunity to upload a video on their profile, unlike him (Request II 10),
and/or
- paying customers are given the opportunity to be interviewed by the defendant and have the interview posted on their profile, unlike him (Request II 11),
and/or
- paying customers are given the opportunity to query individual evaluation criteria on their profile, unlike him (Request II 12),
and/or
- paying customers are given the opportunity to have their profile created and maintained by the defendant, unlike him (Request II 13),
and/or
- paying customers are given the opportunity to use the services of professional writers for the texts on their profile, unlike him (Request II 14),
and/or
- paying customers are given the opportunity to publish articles on the "Expert Guide" subpage, unlike him (Request II 15),
and/or
- paying customers are given the opportunity to be interviewed by the defendant and have the interview published on the "Expert Guide" subpage, unlike him (Request II 16),
and/or
- paying customers are given the opportunity to present themselves more prominently in search queries for specific specialties, unlike him (Request II 17),
and/or
- paying customers are given the opportunity to present themselves more prominently in search queries for specific keywords, unlike him (Request II 18),
and/or
- paying customers are displayed on the jameda homepage, unlike him (Request II 19),
and/or
- a personal contact person is provided to paying customers in the defendant's company, unlike him (Request II 20),
and/or
- paying customers are given the opportunity to contact the defendant via a free hotline, unlike him (Request II 21).
5
The Court of Appeal amended the District Court's judgment to grant requests II 5 to II 16 and II 18 and upheld the dismissal of the claims only regarding requests II 2 to II 4, II 17, II 19 to II 21. It dismissed the plaintiff's further appeal. The plaintiff continues to pursue his claims with the appeal allowed by the Court of Appeal to the extent that they were dismissed, while the defendant seeks to annul and amend the appeal judgment to the extent that it was ruled against them.
**Reasons for the Decision**
I.
6
The Court of Appeal primarily reasoned that the plaintiff is entitled to an injunction against the processing of his data under § 823 para. 2, § 1004 BGB analog in conjunction with Art. 6 para. 1 sentence 1 lit. f GDPR regarding requests II 5 to 16 and II 18 because the required balancing of conflicting interests falls in his favor, rendering the processing of his data unlawful to that extent.
7
Art. 6 para. 1 sentence 1 lit. f GDPR is applicable in the dispute. The defendant cannot invoke the so-called media privilege under Art. 85 para. 2 GDPR in conjunction with Art. 38 BayDSG, as there is no data processing for "journalistic purposes" within the meaning of the aforementioned provisions. The defendant, as a legal entity under private law, is responsible within the meaning of Art. 4 no. 7 GDPR and processes the plaintiff's personal data in a filing system (Art. 4 no. 1 GDPR, Art. 4 no. 6 GDPR). Whether the processing of the disputed data of the plaintiff is permissible is determined by Art. 6 para. 1 sentence 1 lit. f GDPR, according to which the processing of personal data is lawful if it is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data. A comprehensive proportionality test and balancing of the conflicting interests of the plaintiff on one side and the defendant and the portal users on the other side are required. In the field of fully harmonized data protection law under Union law, the Union's fundamental rights alone are generally decisive, according to the Federal Constitutional Court's case law. In the context of the balancing exercise, the principles of the Federal Court of Justice's decision of 20 February 2018 (VI ZR 30/17, BGHZ 217, 340) on § 29 BDSG a.F. can still be applied. In the balancing exercise, it should be considered whether the defendant departs from its role as a "neutral" information intermediary by granting hidden advantages to individual doctors (paying premium customers) through the type of advertising offered. It is not necessarily required that the profile of non-paying doctors is used as a platform for advertising paying premium customers.
8
Regarding the portal designs underlying requests II 5 to 16 and II 18, the balancing of interests leads to the conclusion that the plaintiff's fundamental rights positions prevail. The data processing is therefore unlawful, and an
injunction claim by the plaintiff is to be affirmed. Concerning the design of the plaintiff's basic profile, against which he is challenging with requests II 5 to 14, the defendant grants hidden advertising advantages to paying doctors, thus departing from its role as a "neutral" information intermediary. Since these advantages are of considerable importance and not merely insignificantly disadvantage the plaintiff, it must be assumed in these cases that the fundamental rights positions of the plaintiff prevail. Here, the defendant violates its neutrality obligation and grants hidden advertising advantages to individual doctors. The plaintiff is also portrayed as uninterested and incapable of making a meaningful presentation to the portal users. This occurs without adequately disclosing to the users that these are paid services offered only to paying customers, resulting in a distorted and misleading picture. The defendant thereby exerts undue pressure on the plaintiff to also become a paying customer and acquire a premium package. The plaintiff is entitled to injunction claims insofar as it concerns the opportunities granted exclusively to paying customers to enhance their profiles with additional information and assistance from the defendant in profile design, while this is not allowed for doctors like the plaintiff who are included without their consent. Since these are significant advantages that not only insignificantly disadvantage the plaintiff, even upon further consideration of the interests favoring the defendant in the balancing exercise, it must be assumed in these cases that the plaintiff's fundamental rights positions prevail.
9
Otherwise, the data processing raises no concerns (requests II 2 to II 4, II 17, and II 19 to II 21). Where the plaintiff's profile refers to a list of doctors for specific treatment areas (request II 2), where the plaintiff challenges the reference on his profile to a list of doctors for specific treatment areas, especially attacking the highlighting of these doctors on the list for a fee (request II 3), and regarding the request to refrain from embedding advertising for third-party companies on the plaintiff's profile (request II 4), there is a lack of (professional) competition between the beneficiaries and the plaintiff, making the injunction claims unfounded.
II.
10
The defendant's permissible appeal succeeds in the matter. The Court of Appeal erroneously upheld the plaintiff's claims regarding portal designs and behaviors under requests II 5 to II 16 and II 18. The conditions for an injunction claim arising from Art. 17 para. 1 GDPR (also) are not met (cf. Senate judgments of 12 October 2021 - VI ZR 489/19, BGHZ 231, 263 para. 10; of 27 July 2020 - VI ZR 405/18, BGHZ 226, 285 para. 20, 23 on delisting; BSGE 127, 181 para. 13).
11
1. The temporal, material, and territorial scope of the General Data Protection Regulation (GDPR) is opened (cf. e.g., Senate judgment of 27 July 2020 - VI ZR 405/18, BGHZ 226, 285 para. 11 ff.).
12
2. The applicability of Art. 17 GDPR is not precluded by Art. 38 para. 1 BayDSG in conjunction with Art. 85 para. 2 GDPR (so-called "media privilege") (cf. Senate judgments of 12 October 2021 - VI ZR 488/19, NJW 2022, 1098 para. 12 ff. and VI ZR 489/19, BGHZ 231, 263 para. 12 ff.; of 15 February 2022 - VI ZR 692/20, NJW-RR 2022, 692 para. 10 ff.).
13
3. However, the substantive requirements for an injunction claim under Art. 17 para. 1 GDPR are not met. None of the deletion or injunction grounds mentioned therein apply. This also applies particularly to the deletion or injunction grounds under Art. 17 para. 1 lit. c GDPR and Art. 17 para. 1 lit. d GDPR.
14
a) The injunction ground under Art. 17 para. 1 lit. d GDPR does not apply because the data processing challenged by the plaintiff is not unlawful.
15
aa) Under Art. 6 para. 1 sentence 1 GDPR, the processing of personal data is only lawful if at least one of the conditions listed in Art. 6 para. 1 sentence 1 lit. a to f GDPR is met. In this case, the plaintiff neither consented to the processing of his personal data on the defendant's portal (lit. a), nor are the conditions under lit. b to e met. The processing of the data challenged by the plaintiff on the defendant's portal is thus lawful under Art. 6 para. 1 sentence 1 lit. f GDPR only if the processing is necessary for the purposes of the legitimate interests pursued by the defendant or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the plaintiff as the data subject requiring the protection of personal data. The data processing is thus permissible under three cumulative conditions: first, the defendant or a third party, here the portal users, must be pursuing a legitimate interest; second, the processing of personal data must be necessary to realize the legitimate interest; and third, the interests or fundamental rights and freedoms of the plaintiff (hereinafter collectively referred to as "interests" of the plaintiff) must not override (ECJ, GRUR 2021, 1067 para. 106 - Mircom/Telenet).
16
bb) These conditions are met regarding the portal designs and behaviors defended by the defendant in the appeal proceedings.
17
(1) The academic degree, name, specialty, and practice address of the plaintiff are "personal data" within the meaning of Art. 4 no. 1 GDPR. By collecting, organizing, storing, and disclosing these data to the users of its portal, the defendant "processes" these data within the meaning of Art. 4 no. 2 GDPR as part of its portal operations.
18
(2) By processing the aforementioned data, the defendant pursues both its own legitimate interests and the legitimate interests of its portal users.
19
(a) With its review portal and the (ideally) complete inclusion of all doctors, the defendant provides the public using its portal with an organized overview of who offers which medical services and where. Additionally, by collecting, storing, and sharing reviews, it offers the public using the portal insights into personal experiences and subjective assessments of each doctor's patients, which the reader (hereinafter "passive user" in contrast to the "active user" who reviews) can consider when choosing a doctor. The defendant's interest in operating the portal thus falls within the scope of protection of Art. 11 para. 1 of the - here relevant (cf. BVerfGE 152, 216 para. 33 ff. - Right to Be Forgotten II; further Senate judgment of 27 July 2020 - VI ZR 405/18, BGHZ 226, 285 para. 25) - Charter of Fundamental Rights of the European Union (CFR), which, according to its wording, protects not only the expression of one's own opinion but also the sharing of others' opinions and information. Additionally, the operation of the portal, with which the defendant fulfills a function fundamentally approved and desired by society (cf. Senate judgments of 12 October 2021 - VI ZR 488/19, NJW 2022, 1098 para. 28; of 14 January 2020 - VI ZR 497/18, ZUM-RD 2020, 186 para. 46; of 20 February 2018 - VI ZR 30/17, BGHZ 217, 340 para. 15; of 23 September 2014 - VI ZR 358/13, BGHZ 202, 242 para. 39 f.; BGH, judgment of 19 March 2015 - I ZR 94/13, GRUR 2015, 1129 para. 37), especially in its form as a business model, falls under the commercial activity of the defendant protected by Art. 16 CFR. For these reasons alone, the operation of the portal is in the legitimate interest of the defendant; thus, by processing the plaintiff's personal data, it pursues its own legitimate interests.
20
(b) The defendant also pursues legitimate user interests by operating its portal and processing the personal data (also) of the plaintiff, insofar as it allows active users to submit and disseminate an opinion protected by Art. 11 para. 1 CFR and gives passive users the opportunity - also protected by Art. 11 CFR - to take note of it (cf. for search engines BVerfGE 152, 216 para. 110 - Right to Be Forgotten II; further Senate resolution of 27 July 2020 - VI ZR 476/18, NJW 2020, 3444 para. 35).
21
(3) The processing of the mentioned personal data of the plaintiff is also "necessary" to realize the legitimate interests of the defendant and its users. Although this requirement must be interpreted restrictively; exceptions and restrictions on the protection of personal data must be limited to what is absolutely necessary (ECJ, GRUR 2021, 1067 para. 110 - Mircom/Telenet; on Art. 7 lit. f Data Protection Directive cf. ECJ, DAR 2017, 698 para. 30 - Rigas satiksme, mwN; Schantz in Simitis/Hornung/Spiecker gen. Döhmann, Data Protection Law, 1st ed., Art. 6 para.
1 GDPR para. 100). In this case, the necessity requirement is met. For the operation of the review portal, the processing of the personal data of the doctors listed in the portal as completely as possible is indispensable. Without their sufficient identifiability, such a portal could neither provide users with an overview of the doctors available for their ailments nor allow them to be reviewed by the portal users. The representation limited to names, academic degrees, professional information, and submitted reviews on the basic profiles serves this purpose and does not exceed what is absolutely necessary in this regard.
22
(4) Finally, concerning the behaviors of the defendant disputed in the appeal proceedings, the interests or fundamental rights and freedoms of the plaintiff do not override the legitimate interests of the defendant in operating the portal. The necessary balancing of the rights and interests conflicting in the individual case (cf. Senate judgment of 27 July 2020 - VI ZR 405/18, BGHZ 226, 285 para. 24; ECJ, GRUR 2021, 1067 para. 111 - Mircom/Telenet; each with mwN) does not favor the plaintiff (cf. for largely similar constellations judgment of 12 October 2021 - VI ZR 488/19, NJW 2022, 1098 para. 22 ff.).
23
(a) In the context of the balancing required by Art. 6 para. 1 sentence 1 lit. f GDPR, besides his right to protection of his personal data under Art. 8 CFR, the significant dangers to his social and professional reputation (Art. 7 CFR) as well as the economic success of his self-employed activity (Art. 16 CFR) should be considered, which his inclusion in the defendant's portal and the associated processing of his personal data may entail. The evaluations enabled by the inclusion in the portal can influence the choice of doctor by patients in need of treatment, thereby directly affecting competition with other doctors, and in the case of negative evaluations, can even endanger the professional existence of the evaluated doctor. The broad impact of the defendant's review portal is considerable. Finally, it is not excluded that the portal may be abused to post false, offensive, or otherwise inadmissible statements about a doctor, even though the doctor is not defenseless against this and the evaluations only concern the professional activity of the doctor, i.e., a field in which personal development takes place from the outset in contact with the environment (cf. Senate judgments of 23 September 2014 - VI ZR 358/13, BGHZ 202, 242 para. 32 ff.; of 12 October 2021 - VI ZR 488/19, NJW 2022, 1098 para. 34 and VI ZR 489/19, BGHZ 231, 263 para. 34). In his professional area, the self-employed person must be prepared for the observation of his behavior by the broader public due to the effects that his activity has on others, and for criticism of his performance (cf. Senate judgments of 21 November 2006 - VI ZR 259/05, NJW-RR 2007, 619 para. 14; of 23 September 2014 - VI ZR 358/13, BGHZ 202, 242 para. 35; each with mwN).
24
On the other side, besides the defendant's own protected interest in operating its portal, there is the significant public interest in the information and opportunities offered on the defendant's portal. The defendant's portal can help provide patients with the necessary information from their perspective for making a choice of doctor and is generally capable of contributing to greater performance transparency in healthcare. This purpose can be fulfilled at best only in a limited way if it were dependent on the consent of the evaluated doctors, which could be withdrawn, for example, in the case of a weaker evaluation (cf. Senate judgments of 23 September 2014 - VI ZR 358/13, BGHZ 202, 242 para. 39 ff.; of 12 October 2021 - VI ZR 488/19, NJW 2022, 1098 para. 35, 38 and VI ZR 489/19, BGHZ 231, 263 para. 35, 38).
25
Finally, in the balancing exercise, it should also be considered to what extent the defendant acts as a "neutral information intermediary" in operating the portal. If it leaves this position, it can negatively affect itself. However, a strict equality principle, with the consequence that unequal treatment of non-paying and paying doctors always leads to the inadmissibility of data processing in the portal operation, cannot be derived from this (cf. to this and the following Senate judgments of 15 February 2022 - VI ZR 692/20, NJW-RR 2022, 693 para. 25; of 12 October 2021 - VI ZR 488/19, NJW 2022, 1098 para. 39 and VI ZR 489/19, BGHZ 231, 263 para. 39; different Franz, AfP 2020, 67, 69; probably also Büscher, GRUR 2017, 433, 439); such automatism would not be compatible with the balancing required by Art. 6 para. 1 sentence 1 lit. f GDPR, considering the specific circumstances of each individual case (cf. ECJ, GRUR 2021, 1067 para. 111 - Mircom/Telenet). Neither does anything different result from the requirements for the publication of comparative product tests (cf. Senate judgment of 17 June 1997 - VI ZR 114/96, NJW 1997, 2593, 2594, juris para. 10). The function of product test organizers, who make their own evaluations, is not comparable to the function of the defendant, which refrains from its own evaluation (cf. Senate judgments of 14 January 2020 - VI ZR 497/18, ZUM-RD 2020, 186 para. 51 on www.yelp.de; of 12 October 2021 - VI ZR 488/19, NJW 2022, 1098 para. 39 and VI ZR 489/19, BGHZ 231, 263 para. 39). By contrast, it is crucial here what specific advantages the defendant grants to paying doctors over non-paying doctors and whether the resulting unequal treatment, in an overall view with all other circumstances of the specific individual case, leads to the interests of the doctor included in the portal against his will outweighing the legitimate interests of the defendant as the portal operator and especially the portal users. This is the case, for example, if the defendant as the portal operator uses (only) the basic profiles of non-paying doctors as an advertising platform for directly competing paying doctors to direct potential patients interested in non-paying doctors to paying doctors and thereby deliberately pushes doctors only included with their basic data to join the group of paying doctors (cf. Senate judgments of 20 February 2018 - VI ZR 30/17, BGHZ 217, 340 para. 18; of 12 October 2021 - VI ZR 488/19, NJW 2022, 1098 para. 39 and VI ZR 489/19, BGHZ 231, 263 para. 39). In this case, the inclusion of the non-paying doctor in the portal disadvantages him already independently of the infringement of his rights under Art. 7 CFR as such and the - generally acceptable - risk of negative reviews. His personal data would then be misused as a "bait" to redirect potential patients interested in him and his profile to competing paying doctors, whereas the reverse is not true; non-paying doctors do not generally have to accept this (cf. Senate judgments of 12 October 2021 - VI ZR 488/19, NJW 2022, 1098 para. 39 and VI ZR 489/19, BGHZ 231, 263 para. 39).
26
However, as a general rule, the situation must be different if the doctor included in the defendant's portal without his consent does not face a disadvantage due to the specific design of the review portal that goes beyond the processing of his personal data required for the portal operation (name, specialty, practice address, other contact details) as such and the generally acceptable risks associated with the review possibility. This is particularly the case if the non-paying doctor is not significantly worse off by his inclusion in the review portal - aside from the infringement of his rights under Art. 7 CFR and the accompanying disadvantages inherent in the review possibility - than he would be without his inclusion in the portal (cf. Senate judgments of 12 October 2021 - VI ZR 488/19, NJW 2022, 1098 para. 40 and VI ZR 489/19, BGHZ 231, 263 para. 40).
27
(b) Applying these principles, the portal designs and behaviors defended by the defendant in the appeal proceedings are permissible. The plaintiff's asserted injunction claims do not exist in this respect. Specifically:
28
(aa) With request II 5, the plaintiff objects to the fact that paying customers are given greater opportunity than him to specify the services they offer on their profile (basic profile five services, premium profile gold ten services, premium profile platinum twenty services). The Senate has already dealt with a similar design option after the decision of the Court of Appeal (cf. Senate judgment of 12 October 2021 - VI ZR 488/19, NJW
2022, 1098 para. 47 ff.). Contrary to the Court of Appeal, the Senate concluded that this circumstance does not lead to the interests of the holder of a basic profile outweighing the interests of the defendant and its users in this data processing in the necessary overall balancing. Since there is no general principle of equal treatment for premium profiles and basic profiles, the interests of the plaintiff do not outweigh the legitimate interests of the defendant and the portal users merely due to the different design of the profiles. Moreover, the specific disadvantages of a basic profile compared to a premium profile referenced in this request are not so significant that they could lead to an overriding interest of the plaintiff in the overall consideration. It should first be noted that the different opportunities to specify the services offered do not lead to portal users visiting the plaintiff's profile being directed to the profiles of "premium competitors"; the Court of Appeal did not find that the basic profiles include references to the more extensive service descriptions on the premium profiles. Therefore, the basic profiles of non-paying doctors are not used as an advertising platform for paying doctors or as "bait" in favor of paying doctors. Contrary to the Court of Appeal's view, it cannot be assumed that the defendant thereby exerts undue pressure on the plaintiff to also become a paying customer. Furthermore, it should be considered in the overall balancing that, according to the findings of the Court of Appeal, even holders of basic profiles have the opportunity to specify their range of services on their profiles to a certain, albeit lesser extent than premium customers, which only requires a (free) registration. As long as the plaintiff has not entered anything in the service overview, his profile will note: "No services listed by Dr. D. yet. Are you Dr. D.? Enter your service overview now." This note is not misleading and is irrelevant to the outcome of the balancing; the plaintiff has not yet used the free opportunity available to him. Therefore, the remaining fact is that a potential patient, when comparing the profiles of competing paying and non-paying doctors, may initially - at least in cases where the above differentiation is significant - conclude that the defendant's premium customers are broader in scope, as the service overviews on their profiles are more detailed than those on the basic profiles. That these different representations are due to the purchase of additional presentation options is at least made clear to the average passive user by the fact that the premium profiles are marked as such and explained in more detail using the "mouse-over function". It is evident to the average internet user that further information, which can be made visible by clicking or using the "mouse-over function," may be found behind an initially not particularly informative label on a website. Ultimately, the design element challenged by the plaintiff does not result in burdens for him that go significantly beyond the inherent disadvantages associated with the operation of a review portal.
29
(bb) The opportunity to upload a portrait photo granted to paying customers - unlike the plaintiff - was also addressed in the aforementioned Senate decision (Senate judgment of 12 October 2021 - VI ZR 488/19, NJW 2022, 1098 para. 53 ff.). According to the considerations there, which are applicable to the present case, the design of the portal challenged by the plaintiff with request II 6, according to which only premium profiles of paying doctors can have a portrait photo of the respective doctor, but not the basic profiles of non-paying doctors, does not lead to the plaintiff's interests in stopping the processing of his personal data outweighing the interests of the defendant and its users in operating the portal and the associated data processing in the overall balancing required by Art. 6 para. 1 sentence 1 lit. f GDPR. It must be noted here as well that the mere fact that paying doctors have advantages in designing their profiles over the non-paying plaintiff does not lead to an overriding interest of the plaintiff in stopping the processing of his personal data. Furthermore, the absence of a portrait photo on the basic profiles does not direct a potential patient visiting the profile to the profile of a competing paying doctor. The potential patient will only notice this difference in profile design if he compares the profile of a premium customer with that of a non-paying doctor. The resulting burden for the non-paying doctor is not particularly severe. It is also clear from the "mouse-over function" on the premium profile why the profiles differ in terms of photos. The risk that potential patients, when comparing the two profiles, may prefer a treatment by the holder of a premium profile due to the presence of a photo is very low; because the focus of passive users' interest, as intended by the portal's design, are typically the evaluations of other patients, particularly the grades, which are independent of the type of profile. Hence, the design element challenged by the plaintiff does not have an independent, significant adverse effect on a doctor listed on a basic profile. To the extent that a gray silhouette with the text "This doctor has unfortunately not yet uploaded a portrait" appears on the basic profile, it is rather far-fetched to conclude that the average internet user would get the wrong impression that the individual doctor is not interested in uploading his picture and thus in a positive presentation or is unable to do so. In addition, this risk does not weigh heavily enough in the balancing to lead to a different outcome.
30
Regarding the significant visual gap between premium and basic profiles, the Senate has pointed out that the disadvantages of a basic profile compared to a premium profile are not so significant that they would lead to an overriding interest of the basic customers in the overall consideration. It does not matter that a potential patient comparing the profiles of competing paying and non-paying doctors may get the impression that the non-paying doctor does not care about his appearance, associating it with the idea that a premium customer is superior to a non-paying competitor in terms of marketing, more interested, or more tech-savvy. What is crucial is that the absence of a photo on the basic profile does not suggest to an average user that the doctor is less qualified than the holder of a premium profile with a photo (cf. Senate judgment of 15 February 2022 - VI ZR 692/20, NJW-RR 2022, 693 para. 29).
31
(cc) The same applies to the plaintiff's requests II 7 to 10 against the processing of his personal data by the defendant if paying doctors, unlike him, are given the opportunity to present individual content and images on their profiles, specify and link the address of their practice website, publish specialist articles, or upload a video. According to the Senate decision of 12 October 2021 (VI ZR 488/19, NJW 2022, 1098 para. 56 ff.) on the possibility of individual content and images on premium profiles, the unequal treatment of the plaintiff compared to paying doctors does not lead to his interests in stopping the disputed data processing outweighing the legitimate interests of the defendant and its users in the overall consideration. Here too, it must be noted that the plaintiff's basic profile is not used as an advertising platform or "bait" for competing doctors, but the additional information options on the premium profiles come into play only when a potential patient himself compares the basic profile of the plaintiff with premium profiles of paying doctors. While a potential patient may draw conclusions about differences in professional qualification of the respective doctors from the different information content at a quick glance, upon closer inspection, it is clear to him via the "mouse-over function" what the reason behind the different information quantity and depth on basic profiles on the one hand and premium profiles on the other hand is. Finally, it is also true here that the average passive user of the defendant's doctor review portal will typically compare several doctors primarily based on the available evaluations, which do not favor paying doctors. Thus, these design elements do not cause significant independent adverse effects on the plaintiff, so his interests in stopping the processing of his personal data do not outweigh those of the defendant and its users (cf. Senate judgment of 12 October 2021 - VI ZR 488/19, NJW 2022, 1098 para. 56). The same applies to the design options for publishing specialist articles and uploading a video on the premium profiles (cf. Senate judgment of 12 October 2021 - VI ZR 488/19, aaO para. 57).
32
(dd) The same applies to the plaintiff's objection to the opportunity granted to paying customers, unlike him, to be interviewed by the defendant and have the interview posted on their profile (request II 11). This design does not lead to the basic profile being used as an advertising platform or "bait" for competing doctors (cf. Senate judgment of 12 October 2021 - VI ZR 488/19, NJW 2022, 1098 para. 56 f.). Why, as the Court of Appeal assumes, the average portal user should believe that the defendant selected and interviewed the respective doctor due to his expertise and special skills is not understandable.
33
(ee) The plaintiff's request to stop the defendant from allowing only paying customers to query individual evaluation criteria on their profile (request II 12) is also unfounded. According to the Court of Appeal's findings, the evaluations given by active portal users do not affect the overall rating of the respective doctor. The disadvantage for non-paying doctors compared to paying doctors is limited to paying doctors being able to get more differentiated feedback than non-paying doctors. Even if, as the Court of Appeal believes, this allows paying customers to replace unfavorable optional criteria with those they expect mostly positive ratings, without this possibility being disclosed to the public, the basic profile is not used as an advertising platform for a competitor, and this design element does not cause any significant independent adverse effects on the plaintiff, since these differences are only apparent to a portal user making a very careful comparison of a premium profile with a basic profile (cf. Senate judgment of 12 October 2021 - VI ZR 488/19, NJW
2022, 1098 para. 59 f.).
34
(ff) With requests II 13 and II 14, the plaintiff objects to the processing of his personal data by the defendant if paying doctors, unlike him, are given the opportunity to have their profile created and maintained by the defendant or to use the services of professional writers for the texts on their profile. The Senate has already addressed such a service offering (cf. Senate judgment of 12 October 2021 - VI ZR 488/19, aaO para. 61 f.). The Senate concluded that the preferential treatment of paying doctors does not lead to the interests of a basic customer in stopping the processing of his personal data outweighing the legitimate interests of the defendant and its users in the overall consideration. This support service only slightly affects the interests of the plaintiff. It has no effect on the design of the basic profile. It also does not result in the basic profiles of non-paying doctors being misused as an advertising platform or "bait" for paying doctors. The opportunity offered to paying doctors to make their premium profiles even more attractive compared to the basic profiles of non-paying doctors through professional help only affects potential patients comparing the profiles and possibly inferring a quality advantage of the paying doctor. This risk is, however, very low. On the one hand, the evaluations serve as the main comparison criterion according to the portal's structure, which is independent of the profile type. On the other hand, the premium profiles are marked as such; this, and the additional "mouse-over function," make it sufficiently clear to portal users that the more elaborate design of the premium profiles is due to the holder being a paying customer of the defendant. It cannot be assumed that this service offering leads to a significant independent burden on the plaintiff, going beyond the inherent disadvantages associated with the operation of a doctor review platform.
35
(gg) With requests II 15 and II 16, the plaintiff objects to the processing of his personal data if, unlike paying doctors, he is not given the opportunity to publish articles on the "Expert Guide" subpage or to be interviewed by the defendant and have the interview published on this subpage. The Senate has already commented on a similar design option (cf. Senate judgment of 12 October 2021 - VI ZR 488/19, NJW 2022, 1098 para. 64 f.). According to the Senate, the disadvantage of the non-paying plaintiff compared to paying premium customers in this design does not lead to his interests in stopping the processing of his personal data outweighing the legitimate interests of the defendant and its users in the data processing as part of the portal operation. As shown, there is no general principle of equal treatment. The opportunity for paying doctors to publish articles or interviews outside the basic profile of a non-paying doctor only slightly affects the non-paying doctor. His basic profile is not used as an advertising platform or "bait" for potential patients to redirect them to paying doctors. The wrong impression mentioned by the Court of Appeal that these only found doctors have special expertise, unlike non-paying doctors, may arise at first, but upon closer inspection, it quickly becomes clear to the knowledgeable portal user that any paying customer can belong to the "experts". The defendant's assertion that no publications by doctors within a 200 km radius of the respective profile holder are displayed does not matter.
36
(hh) The plaintiff further objects with request II 18 to the fact that paying customers, unlike him, are given the opportunity to present themselves more prominently in search queries for specific keywords. The Senate has already addressed a similar design option (cf. Senate judgment of 12 October 2021 - VI ZR 488/19, aaO para. 66). According to this, it is an advantage not granted to the plaintiff as a non-paying doctor. However, the defendant is not obliged to treat paying and non-paying doctors equally. The plaintiff does not suffer any significant disadvantages due to the portal design he challenges. Specifically, the plaintiff's profile is not used as an advertising platform, and his personal data is not misused as "bait" for the benefit of competing paying doctors. This design element is independent of the processing of the plaintiff's personal data. Furthermore, according to the Court of Appeal's findings, the word "advertisement" appears - albeit in small print without any emphasis - at the top right corner of the paying customer's ad.
37
(ii) To the extent that the plaintiff considers the behaviors he challenges - as indicated by his request ("and/or") - to be inadmissible in their combination, the Senate does not share this view. The individually permissible design elements from requests II 5 to II 16 and II 18 do not result in the interests of the plaintiff being significantly burdened in their entirety, so that they outweigh the legitimate interests of the defendant and its users in processing the plaintiff's personal data as part of the portal operation.
38
c) The ground for injunction under Art. 17 para. 1 lit. c GDPR is also not present. For the processing of the plaintiff's personal data, there are legitimate overriding grounds within the meaning of Art. 17 para. 1 lit. c sentence 1 GDPR. The overall balancing required in this respect leads to the same result as the above balancing under Art. 6 para. 1 sentence 1 lit. f GDPR (cf. Senate judgments of 27 July 2020 - VI ZR 405/18, BGHZ 226, 285 para. 24 mwN; of 12 October 2021 - VI ZR 488/19, NJW 2022, 1098 para. 68 and VI ZR 489/19, BGHZ 231, 263 para. 71).
III.
39
The plaintiff's permissible appeal fails in the matter. The Court of Appeal rightly dismissed the injunction claims asserted with requests II 2 to II 4, II 17, and II 19 to II 21, applying the principles outlined under II. 3.
40
Specifically:
41
1. With request II 2, the plaintiff seeks to prevent the publication of a profile about him if, unlike on the profile of paying doctors, there is a reference to a list of doctors for specific treatment areas, while such a reference is omitted on the profiles of paying customers. The request is unfounded. The Senate has already dealt with a similar design option (cf. Senate judgment of 12 October 2021 - VI ZR 488/19 aaO para. 42 f.). The type of representation of the plaintiff on his profile challenged by the plaintiff does not lead to his interests in stopping the processing of his personal data on the defendant's portal outweighing the interests of the defendant and its users in the portal operation and the associated use of this data. Although the plaintiff is disadvantaged compared to paying doctors, who are "spared" such a reference; this unequal treatment alone does not suffice to assume an overriding interest of the plaintiff in stopping the data use described. This unequal treatment of holders of basic profiles on the one hand and paying premium customers on the other hand is not associated with any significant burden on the plaintiff, as the Court of Appeal rightly recognized. Its nature does not allow conclusions about the quality of the services offered by the respective doctor - even in comparison to paying doctors without reference. The holders of a basic profile do not obviously run the risk of losing potential patients interested in them to the doctors listed in the referenced lists from entirely different specialties such as breast augmentation, hair transplant, dental prostheses, dental implants, and root canal treatment. It is not apparent that the design element challenged by the plaintiff leads to burdens for him that go significantly beyond the inherent disadvantages associated with the operation of a doctor review portal (processing of the described personal data, review procedure).
42
2. The further request of the plaintiff (II 3), with which he also challenges the reference on his profile to a list of doctors for specific treatment areas, especially attacking the particular highlighting of these doctors on the list for a fee, was rightly considered unfounded by the Court of Appeal. The Senate has already dealt with a similar design option (cf. Senate judgment of 12 October 2021 - VI ZR 488/19, NJW 2022, 1098 para. 44 f.). Here too, the plaintiff's interests in stopping the processing of his personal data do not outweigh the legitimate interests of the defendant and its users. The plaintiff wants to derive the inadmissibility of publishing his profile from the unequal treatment that paying doctors are particularly highlighted on the referenced list. The Court of Appeal rightly concluded, based on its findings that no doctors in a (professional) competitive relationship with the plaintiff are displayed on the lists, that this representation form only slightly affects the plaintiff, which does not lead to his interests outweighing those of the defendant and the portal users.
43
3. The Court of Appeal also rightly found request II 4 unfounded. The design of "his" basic profile challenged by the plaintiff, namely the embedding of advertising for third-party companies, which differs from the profiles of paying doctors, only slightly affects him. The Senate has already dealt with a similar design option (cf. Senate judgment of 12 October 2021 - VI ZR 488/19, NJW 2022, 1098 para. 46). Special disadvantages are not associated with embedding third-party advertising for the plaintiff. The - as such recognizable - advertising insertions, e.g., for an automobile club and a car brand, are not suitable to affect the plaintiff's reputation in professional or personal terms. Nor is there any risk that potential patients will be directed away from the plaintiff to competing paying doctors due to the advertising insertion. Furthermore, as the Court of Appeal rightly noted, internet users who use free internet services like the defendant's review portal must expect and be accustomed to advertising. Finally, the insertions do not take on a scope
that would push the plaintiff's reviews completely into the background.
44
4. The Court of Appeal also rightly dismissed the plaintiff's injunction claim concerning the defendant allowing paying customers, unlike him, to present themselves more prominently in search queries for specific specialties (request II 17). According to the Court of Appeal's findings, this involves the possibility of booking an ad space above the result list for search queries for specific specialties. The entry of the advertising doctor is highlighted with a light blue background and a yellow "advertisement" notice at the top left. The Court of Appeal considered this a sufficient marking as an advertisement. The Senate, in its evaluation of a similar design option (cf. Senate judgment of 12 October 2021 - VI ZR 488/19 aaO para. 66), concluded that the defendant is not obliged to treat paying and non-paying doctors equally and that the plaintiff does not suffer significant disadvantages from the portal design he challenges. Specifically, the plaintiff's profile is not used as an advertising platform, and his personal data is not misused as "bait" for the benefit of competing paying doctors. This design element is independent of the processing of the plaintiff's personal data.
45
5. The Court of Appeal also rightly dismissed the plaintiff's injunction claim concerning only paying customers being given the opportunity to be displayed on the jameda homepage with a positive review (request II 19). The Court of Appeal found that the display occurs when the homepage of the review portal is called up, before a specific doctor search and independently of a competitive situation. The Senate, in its evaluation of a similar design option, concluded that while it is an advantage for paying customers, it does not cause significant disadvantages for the holder of a pure basic profile. Specifically, the basic profile is not used as an advertising platform, and the personal data of the affected person is not misused as "bait" for the benefit of competing paying doctors. This design element is independent of the processing of the personal data of the holder of the basic profile (cf. Senate judgment of 12 October 2021 - VI ZR 488/19, NJW 2022, 1098 para. 66).
46
6. The Court of Appeal also rightly dismissed the plaintiff's injunction claims concerning the provision of a personal contact person and a free hotline only for paying customers (requests II 20 and II 21) as unfounded. According to the Court of Appeal's legally error-free assessment, these services only concern the permissible design of the contractual relationship between the defendant and its paying customers. The Senate, in its evaluation of this service offering (cf. Senate judgment of 12 October 2021 - VI ZR 488/19 aaO para. 63), reached a similar conclusion. The challenged services are not suitable to create any misconceptions among portal users. If the defendant's services positively affect a premium profile's design in individual cases, it does not disadvantage the holders of basic profiles to such an extent that their interests in stopping the processing of their personal data outweigh the legitimate interests of the defendant and its users in operating the portal. This unequal treatment does not entail any independent significant burden beyond the inherent disadvantages associated with a doctor review platform.
IV.
47
A request for a preliminary ruling from the Court of Justice of the European Union under Art. 267 TFEU is not necessary; reference is made to the reasoning in the Senate judgment of 12 October 2021 (VI ZR 488/19 aaO para. 70).
Since
Oehler
Müller
Klein
Böhm
