BGH - VI ZR 692/20
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| BGH - VI ZR 692/20 | |
|---|---|
 | |
| Court: | BGH (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 6(1)(f) GDPR Article 17(1) GDPR Article 11 CFR Article 16 CFR Article 7 CFR Article 8 CFR |
| Decided: | 15.02.2022 |
| Published: | |
| Parties: | Jameda |
| National Case Number/Name: | VI ZR 692/20 |
| European Case Law Identifier: | ECLI:DE:BGH:2022:150222UVIZR692.20.0 |
| Appeal from: | OLG Frankfurt 16 U 218/18 |
| Appeal to: | |
| Original Language(s): | German |
| Original Source: | Bundesgerichtshof (in German) |
| Initial Contributor: | kc |
The Federal Court of Justice held that a doctor did not have the right to have her basic data deleted from a doctor search and rating platform after weighing both of their legitimate interests pursuant to Article 6(1)(f) GDPR.
English Summary
Facts
The controller operates a doctor search and rating platform under www.jameda.de. It posts the basic data of physicians as well as a grey silhouette as a profile picture with the notice "Only jameda customers can post a profile picture" on the portal without their consent. Users can submit ratings in the form of grades and free text comments. The controller offers doctors a paid "premium package" with which they can add a photo and additional information to their profile and with which the defendant contributes to better findability on Google.
In early 2018, the data subject who is an eye specialist learned that a negative review had been posted about her on the controller's website. She was rated there as "arrogant, unfriendly, unprofessional". The data subject asked for this evaluation to be deleted and for the author to be informed. The controller refused, as well as to the deletion of the data subject's basic data.
In her lawsuit, the data subject demanded the deletion of her basic data from the controller's portal. While that was successful in the first instance, the Higher Regional Court dismissed the action on appeal by the controller.
Holding
The German Federal Court of Justice (Bundesgerichtshof - BGH) dismissed the data subject's appeal.
The court found that the requirements of the right to erasure pursuant to Article 17(1) GDPR were not fulfilled. First, the processing was not unlawful pursuant to Article 17(1)(d) GDPR. As the processing was based on Article 6(1)(f) GDPR, the legitimate interests and fundamental rights of the data subject did not outweigh the interests of the controller. On the data subject's side, the court weighed her right to the protection of her personal data pursuant to Article 8 CFR, the not inconsiderable risks to her claim to social and professional standing (Article 7 CFR) as well as the economic success of her self-employed activity (Article 16 CFR). The court considered that the evaluations could directly affect competition with other doctors and, in the case of negative evaluations, even jeopardise the professional existence of the person evaluated. The broad impact of the controller's rating portal and the possibility of abuse by false or insulting ratings was also considered. On the other side, according to the court, the controller exercised both its own legitimate interests and the legitimate interests of the users of its platform by processing the personal data of the data subject on the platform: it acted both pursuant to its freedom to conduct a business (Article 16 CFR) and to the users' right to freedom of information (Article 11 CFR). The court emphasised the considerable interest that the public has in the information and possibilities offered on the controller's portal which can contribute to providing patients with the information they need when exercising their choice of doctor. It could fulfil this purpose only to a limited extent if it were dependent on the consent of the rated doctors, which could be withdrawn - for example in the case of a weaker rating. The court concluded that a self-employed person must be prepared for observation of their conduct by the wider public because of the effects their activity has on others, and for criticism of their performance. Furthermore, the data subject is not defenceless. She can counter untrue factual claims and insulting or otherwise inadmissible evaluations by contacting the controller and demanding the removal of the content.
Second, the court held that the requirements of Article 17(1)(c) GDPR were also not fulfilled since there were overriding legitimate reasons within the meaning of Article 17(1)(c) GDPR for the processing of the data subject's personal data. The overall weighing that is also required in this respect did not lead to a different result than the weighing carried out under Article 6(1)(f) GDPR.
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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.
motto
1. On the prerequisites for a claim for the deletion of personal data in a doctor search and evaluation portal on the Internet (www.jameda.de).
2. On the so-called "media privilege" within the meaning of Art. 38 Para. 1 BayDSG in conjunction with Art. 85 Para. 2 DS-GVO.
tenor
The plaintiff's appeal against the judgment of the 16th civil senate of the Frankfurt am Main Higher Regional Court of April 9, 2020 is rejected insofar as it is directed against the rejection of the main application; otherwise it is rejected as inadmissible.
The plaintiff bears the costs of the appeal proceedings.
By rights
facts
1
The defendant operates a doctor search and rating portal at the Internet address www.jameda.de. Information about doctors and providers of other health care professions can be called up free of charge on the portal. The defendant puts the basic data of doctors such as name, specialty, practice address, location, contact details and possibly other practice-related information as well as a gray silhouette as a profile picture with the note "Only jameda customers can store a profile picture" in the portal without their consent . Users can give ratings in the form of grades and free text comments. The defendant offers doctors a paid "premium package" with which they can add a photo and additional information to their profile and with which the defendant contributes to better findability on Google. The profiles of premium customers appear in the defendant's portal in addition to being reproduced in a list as an "advertisement", which is marked as such and highlighted in colour.
2
The plaintiff, an ophthalmologist, learned in early 2018 that a negative review had been posted about her on the defendant's website. She was rated there as "arrogant, unfriendly, unprofessional". The plaintiff asked for this review to be deleted and for the author to be notified. The defendant refused, as well as the deletion of the plaintiff's basic data.
3
With her lawsuit, the plaintiff demands the deletion of her basic data from the defendant's portal. The District Court upheld the lawsuit. On appeal by the defendant, the Higher Regional Court dismissed the action. The Court of Appeal considered the plaintiff's cross-appeal, with which she only requested the deletion of the negative evaluation, to be unfounded. With the appeal allowed by the court of appeal, the plaintiff is pursuing her applications.
Reasons for decision
A
4
The Court of Appeal, whose judgment is published in GRUR 2020, 1106, among other things, essentially stated the following to justify its decision:
5
The plaintiff has no right to have its basic data deleted, as there is no unlawful processing of personal data pursuant to Art. 17 Para. 1 Letter d DS-GVO. Due to a lack of journalistic activity of its own, the defendant cannot invoke the media privilege of Article 85 (2) GDPR in conjunction with Article 38 BayDSG. The data processing carried out without the plaintiff's consent is lawful under Art. 6 Para. 1 Sentence 1 Letter f DS-GVO. The balancing of the legitimate interests of the defendant (right to freedom of communication and Art. 12 Para. 1 GG), the information interest of third parties in the list of doctors with grades and free text comments and the interests of the plaintiff (right to informational self-determination and Art. 12 Para. 1 GG) falls at the expense of the plaintiff. The defendant does not leave the function of a neutral information broker. It does not provide its premium customers with any hidden advantages. The function of a neutral information broker is not necessarily associated with an advertising ban. It is clear to the portal user that a fee has to be paid for advertisements that are identified as such and highlighted in colour. These advertisements appeared on pages with profiles of premium customers and non-customers alike, which means that there is no hidden unequal treatment. The decisive factor is how understandable the information is for the user of the rating portal, whether he can see that there are advantages for paying customers and that these advantages do not put non-customers at an unreasonable disadvantage. This is the case because both the recording of the doctors and the order in which they appear on the list are independent of a premium membership.
6
The auxiliary application, with which the plaintiff demands the deletion of her negative rating, is also unfounded, since the rating "arrogant, unfriendly and unprofessional" does not violate her personal rights unlawfully. It is an expression of opinion that does not cross the line of abusive criticism. This statement is based on a visit to the plaintiff, so it is not without any factual basis.
B.
7
The plaintiff's revision, which was admissible in the main application, is unsuccessful in the matter. The Court of Appeal rightly regarded the main application as unfounded.
8th
I. Ultimately, the court of appeal rightly assumed that the requirements of the claim for deletion of the basic data pursuant to Art. 17 (1) DS-GVO, which was asserted with the lawsuit, are not met.
9
1. The temporal, material and spatial scope of application of the General Data Protection Regulation (e.g. Senate judgment of July 27, 2020 - VI ZR 405/18, BGHZ 226, 285, para. 11 et seq.) has been opened.
10
2. The applicability of Art. 17 DS-GVO does not conflict with Art. 38 Para. 1 BayDSG in conjunction with Art. 85 Para. 2 DS-GVO (so-called "media privilege").
11
In Art. 38 BayDSG, the Free State of Bavaria, in which the defendant is based, has made use of the option provided for in Art. 85 (2) GDPR to make deviations or exceptions from Chapters II to VII and IX of the General Data Protection Regulation to foresee. According to Art. 38 Para. 1 Sentence 1 BayDSG, the person concerned does not have the rights under Art. 17 DS-GVO if personal data is processed for - among other things - journalistic purposes (cf. Senate judgments of October 12, 2021 - VI ZR 488/19, WRP 2022, 193 para. 13 and VI ZR 489/19, WRP 2022, 203 para. 13).
12
The court of appeal rightly came to the conclusion that the personal data of the plaintiff in the defendant's portal were not processed for journalistic purposes within the meaning of Art. 38 (1) sentence 1 BayDSG, since the defendant, on the basis of the findings made, Rating portal does not meet the level of content processing required for data processing. In particular, contrary to the opinion of the appeal, the technical recording of third-party contributions, the automated, albeit structured, compilation of third-party ratings and the calculation of average and overall grades alone are not sufficient. But even in the abuse control of the posted contributions within the framework of the protective mechanisms required by case law, there is no sufficient processing of the content of the user contributions for the acceptance of journalistic activity (cf. Senate judgments of October 12, 2021 - VI ZR 488/19, WRP 2022, 193 para. 20 and VI ZR 489/19, WRP 2022, 203 para. 20, each with further references).
13
3. The requirements for a right to erasure according to Art. 17 Para. 1 DS-GVO are not met. None of the reasons for deletion mentioned there apply.
14
a) The reason for deletion of Art. 17 Para. 1 Letter d DS-GVO does not exist because the challenged data processing is not unlawful.
15
aa) According to Art. 6 Para. 1 Sentence 1 DS-GVO, the processing of personal data is only lawful if at least one of the conditions specified in Art. 6 Para. 1 Sentence 1 Letters a to f DS-GVO is fulfilled. In the case at hand, the plaintiff has neither consented to the processing of her personal data on the defendant's portal (letter a), nor are the conditions specified in letters b to e met. The processing of her data on the defendant's portal, which the plaintiff is fighting, is only legal according to Art. 6 (1) sentence 1 letter f DS-GVO if the processing is necessary to protect the legitimate interests of the defendant or a third party, unless the interests or fundamental rights and freedoms of the plaintiff as the data subject, which require the protection of personal data, prevail. According to this, data processing is permitted under three cumulative conditions: firstly, a legitimate interest must be exercised by the defendant or by a third party, in this case the portal users; secondly, the processing of the personal data must be necessary to realize the legitimate interest and thirdly, the interests or fundamental rights and fundamental freedoms of the plaintiff (hereinafter also referred to collectively as "interests" of the plaintiff) must not prevail (ECJ, GRUR 2021, 1067 para. 106 - Mircom/Telenet; Senate judgments of October 12, 2021 - VI ZR 488/19, WRP 2022, 193 para. 24 and VI ZR 489/19, WRP 2022, 203 para. 24).
16
bb) These requirements are met with regard to the attacked data processing.
17
(1) The plaintiff's name, specialty and practice address constitute "personal data" within the meaning of Art. 4 No. 1 DS-GVO. The defendant collects, records, organizes, saves the data as part of its portal operation and provides the users of its portal disclosed to, it "processes" this data within the meaning of Art. 4 No. 2 DS-GVO.
18
(2) With the aforementioned data processing, the defendant protects both its own legitimate interests and the legitimate interests of the users of its portal.
19
(a) With the evaluation portal it operates and the (as) complete listing of all doctors as possible, the defendant first gives the public using its portal an orderly overview of who and where offers which medical services. By collecting, storing and passing on the ratings, it also gives the public using the portal an insight into the personal experiences and subjective assessments of patients of the respective doctor, which the respective reader (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 falls within the scope of Art. 11 Para. 1 of the - here authoritative (cf. BVerfGE 152, 216 para. 33 ff. - right to be forgotten II; also Senate judgment of 27 July 2020 - VI ZR 405/18, BGHZ 226, 285 Rn. 25) - Charter of Fundamental Rights of the European Union (GRCh), which according to its wording not only protects the expression of one's own opinion, but also the disclosure of third-party opinions and information. In addition, the portal operation, with which the defendant fulfills a function that is fundamentally approved by the legal system and socially desirable (cf. Senate judgments of October 12, 2021 - VI ZR 488/19, WRP 2022, 193 para. 28 and VI ZR 489/19 , WRP 2022, 203 para. 28, each with further references), especially in its form as a business model for the defendant's commercial activity protected by Art. 16 GRCh. For these reasons alone, the operation of the portal is in the defendant's legitimate interest; with the associated processing of the plaintiff's personal data, she thus safeguards her own legitimate interests.
20
(b) The defendant protects legitimate user interests with the operation of its portal and the associated processing of the personal data of the plaintiff (also) insofar as it enables active users to submit and disseminate an opinion protected by Art. 11 Para. 1 GRCh and passive users the opportunity - also covered by Art. 11 GRCh - to take note of it (cf. Senate judgments of October 12, 2021 - VI ZR 488/19, WRP 2022, 193 para. 29 and VI ZR 489/19, WRP 2022, 203 para. 29, each with further references).
21
(3) The processing of the said personal data of the plaintiff is also "necessary" to realize the legitimate interests of the defendants and their users. Admittedly, this requirement must be interpreted restrictively; Exceptions and restrictions with regard to the protection of personal data must be limited to what is absolutely necessary (ECJ, GRUR 2021, 1067 para. 110 - Mircom/Telenet; Senate judgments of October 12, 2021 - VI ZR 488/19, WRP 2022, 193 30 and VI ZR 489/19, WRP 2022, 203 para. 30). In the present case, however, the requirement of necessity is fulfilled. The processing of the personal data of the doctors listed in the portal - as completely as possible - by the defendant is indispensable for the operation of the evaluation portal. Because without their sufficient identifiability, such a portal would neither be able to provide the portal users with an overview of the doctors who are suitable for them and their condition, nor to have them rated by the users of the portal. The presentation on the basic profiles, which is limited to names, job-related information and ratings, fulfills this purpose and does not go beyond what is absolutely necessary in this respect.
22
(4) Finally, with regard to the attacked behavior of the defendant, the interests or fundamental rights and freedoms of the plaintiff do not outweigh the legitimate interests perceived by the defendant with the portal operation. The necessary consideration of the conflicting rights and interests according to the specific circumstances of the individual case (cf. ECJ, GRUR 2021, 1067 para. 111 - Mircom/Telenet; Senate judgments of October 12, 2021 - VI ZR 488/19, WRP 2022, 193 Rn. 31 and VI ZR 489/19, WRP 2022, 203 Rn. 31, each with further references), as carried out by the Court of Appeal, is subject to legal review, to which it is fully subject (cf. Senate judgment of September 23, 2014 - VI ZR 358/13, BGHZ 202, 242 para. 30 - Doctors' Assessment II), as a result. However, the appeal rightly complains that the Court of Appeal made its assessment on the basis of national law and did not apply the Charter of Fundamental Rights of the European Union.
23
(a) As part of the weighing to be carried out in accordance with Article 6 Paragraph 1 Clause 1 Letter f Validity claim (Art. 7 GRCh) as well as the economic success of their self-employment (Art. 16 GRCh), which their inclusion in the portal operated by the defendant and the associated processing of their personal data may entail. The ratings - made possible by inclusion in the portal - can influence the choice of doctor by people in need of treatment, thereby having a direct impact on competition with other doctors and thus, in the case of negative ratings, even endangering the professional existence of the person being rated. The broad impact of the defendant's rating portal is also significant. Finally, it cannot be ruled out that the portal will be misused to put untrue, insulting or otherwise inadmissible statements about a doctor online, even if the doctor in question is not defenseless and the ratings only relate to the doctor's professional activity, i.e. a Area in which personal development takes place from the outset in contact with the environment (cf. Senate judgments of September 23, 2014 - VI ZR 358/13, BGHZ 202, 242 para. 32 et seq. - Ärztebewertung II; of October 12, 2021 - VI ZR 488/19, WRP 2022, 193 para. 34 and VI ZR 489/19, WRP 2022, 203 para. 34). In his professional area, the self-employed person must be prepared to have his behavior observed by the general public because of the effects his work has on others and to be prepared for criticism of his performance (cf. Senate judgments of November 21, 2006 - VI ZR 259/ 05, NJW-RR 2007, 619 para. 14; from September 23, 2014 - VI ZR 358/13, BGHZ 202, 242 para.
24
On the other hand - in addition to the defendant's self-interest in the operation of its portal, which is also protected - there is the very considerable interest that the public has in the information and opportunities offered in the defendant's portal. The defendant's portal can help to provide patients with the information they feel they need when choosing a doctor, and is generally suitable for contributing to more transparency in healthcare services. Contrary to the opinion of the appeal, it can only fulfill this purpose to a limited extent if it were dependent on the approval of the assessed doctors, which - for example in the case of a weaker assessment - could be withdrawn (cf. Senate judgments of September 23, 2014 - VI ZR 358/13, BGHZ 202, 242 para. 39 et seq. - Doctors' assessment II; of October 12, 2021 - VI ZR 488/19, WRP 2022, 193 paras. 35, 38 and VI ZR 489/19, WRP 2022, 203 Paragraphs 35, 38).
25
Finally, when weighing up the extent to which the defendant acts as a "neutral information broker" in the portal operation, it must also be taken into account. If she leaves this position, this can work to her disadvantage. However, a strict equal treatment requirement with the result that unequal treatment of non-paying and paying doctors always leads to the inadmissibility of data processing in the context of portal operation cannot be derived from this (different from Franz, AfP 2020, 67, 69; probably also Büscher, GRUR 2017, 433, 439); Such an automatism could already be achieved with the consideration required under Art. 6 Para. 1 Sentence 1 Letter f GDPR, taking into account the specific circumstances of each individual case (cf. ECJ, GRUR 2021, 1067 para. 111 - Mircom/Telenet) not agree. Contrary to the opinion of the appeal, the requirements for the publication of comparative product tests (cf. Senate judgment of June 17, 1997 - VI ZR 114/96, NJW 1997, 2593, 2594, juris para. 10) do not indicate otherwise either. The function of the defendant, which abstains from its own evaluation, is not comparable to the function of the organizer of product tests, who carry out their own evaluation (cf. Senate judgments of January 14, 2020 - VI ZR 497/18, ZUM-RD 2020, 186 para. 51 [to evaluate the evaluation on www.yelp.de]; dated October 12, 2021 - VI ZR 488/19, WRP 2022, 193 para. 39 and VI ZR 489/19, WRP 2022, 203 para. 39 ). On the other hand, what is decisive here is what concrete advantages the defendant grants to paying doctors compared to 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 who was included in the portal against his will overriding the legitimate interests of the defendant portal operator and above all the portal user outweigh. This is the case, for example, if the defendant, as the operator of the portal, (only) uses the basic profiles of non-paying doctors as an advertising platform for directly competing paying doctors in order to direct potential patients from the non-paying to the paying doctors and thus only with their basic data specifically to persuade admitted doctors to join the group of paying doctors (cf. Senate judgments of February 20, 2018 - VI ZR 30/17, BGHZ 2017, 340 para. 18 - Ärztebewertung III; of October 12, 2021 - VI ZR 488 /19, WRP 2022, 193 para. 39 and VI ZR 489/19, WRP 2022, 203 para. 39). The inclusion of the non-paying doctor in the portal is already disadvantageous for him, regardless of the interference with his rights under Art. 7 GRCh as such and the risk of negative reviews - which he has to accept in principle. In this case, his personal data is misused as "bait" so to speak, to deprive him of potential patients who are interested in him and his profile and to direct them to competing but paying doctors, whereas this is not the case vice versa; non-paying doctors generally do not have to accept this (cf. Senate judgments of October 12, 2021 - VI ZR 488/19, WRP 2022, 193 para. 39 and VI ZR 489/19, WRP 2022, 203 para. 39).
26
In principle, however, the situation must be different if the doctor listed in the portal of the defendant without his consent is not threatened by the specific design of the evaluation portal, the processing of his personal data required for the operation of the portal (name, specialty, practice address, other contact details) as such and the dangers associated with the possibility of assessment, which every doctor has to accept in principle, goes not only insignificantly. This is particularly the case if the non-paying doctor is not in a significantly worse position as a result of his inclusion in the rating portal - apart from the encroachment on his rights under Art. 7 GRCh that is always associated with the processing of his personal data and the impairments associated with the rating option , as if he were standing without his inclusion in the portal (cf. Senate judgments of October 12, 2021 - VI ZR 488/19, WRP 2022, 193 para. 40 and - VI ZR 489/19, WRP 2022, 203 para. 40).
27
(b) If these principles are applied, the contested conduct of the defendants is permissible. The defendant is not obliged to delete the plaintiff's basic data, consisting of the plaintiff's name and the practice, practice address and telephone number. The circumstances identified by the revision do not lead to a different assessment.
28
(aa) The revision correctly states that paying customers have an advantage over the plaintiff, since there is a significant optical difference between the basic and the premium profile. Only premium customers are entitled to post a picture of themselves and their practice. The defendant thus gives its paying customers the opportunity to visually differentiate themselves from the basic customers.
29
However, as stated, there is no general principle of equal treatment with regard to premium profiles on the one hand and basic profiles on the other. The disadvantages of a basic profile compared to a premium profile are not so important that they would lead to the interests of the plaintiff outweighing the overall assessment to be made (cf. Senate judgments of October 12, 2021 - VI ZR 488/19, WRP 2022, 193 para. 54 and VI ZR 489/19, WRP 2022, 203 para. 57). This is not inconsistent with the fact that a potential patient who compares the profiles of competing paying and non-paying doctors may get the impression that the non-paying doctor is not concerned about his external image, and is thus associated with the idea that a premium customer is in the company of his non-paying competitors Consider in terms of marketing. Crucially, the absence of a picture on the basic profile does not, from the perspective of an average user, suggest that the person concerned is less qualified as a doctor than the owner of a premium profile with a picture. The reason for the different illustrations of the profiles on the defendant's portal can also be seen with sufficient clarity in view of the labeling of the non-paying profiles with "Only jameda customers can deposit a profile picture". The risk that potential patients, when comparing the two profiles, will decide in favor of treatment by the owner of a premium profile given the picture only available on the premium profile appears low, because the focus of interest of passive users is already after the The design of the defendant’s portal regularly includes patient ratings that are independent of the type of profile, in particular the grades (cf. already Senate judgments of October 12, 2021 - VI ZR 488/19, WRP 2022, 193 para. 54 and VI ZR 489/19, WRP 2022, 203 para. 57).
30
(bb) The fact that the defendant contributes to a better findability of premium members on the Google search engine is of no decisive importance.
31
It is true that the defendant offers paying doctors advantages that it does not grant to non-paying doctors. However, as shown, the defendant is not obliged to treat paying and non-paying doctors equally. The fact that paying doctors can be found more easily on Google is completely independent of the processing of the plaintiff's personal data. This is an additional fee-based service provided by the defendant.
32
(cc) As far as the appeal is of the opinion that it is the decision of the individual doctor how he presents himself on the Internet and whether he wants to use this medium for advertising purposes, which is why it is in the hands of the plaintiff, only under the address of her homepage in Being found on the internet and setting up a comment function there does not take into account the fact that the individual has no right under Art. 7 and Art. 8 GRCh to be presented in public only as he sees himself or as seen by others (cf. Senate judgments of July 27, 2020 - VI ZR 405/18, BGHZ 226, 285 para. 41, 57; of November 26, 2019 - VI ZR 12/19, NJW 2020, 770 para. 24; BVerfG, NJW 2020, 314 para. 121 - right to be forgotten II).
33
(dd) The appeal complained, also unsuccessfully, that it was not apparent that the defendant was checking its database and that a practice cessation due to retirement, death or disability led to deletion. Therefore, in the event of a practice takeover, the reputation of the practice must be determined in order to avoid negative reviews.
34
This submission is - regardless of its relevance - not eligible for consideration in the appeals body. Pursuant to § 559 Paragraph 1 Sentence 1 ZPO, only the submissions of the parties that can be seen from the appeal judgment or the minutes of the meeting are subject to the assessment of the Court of Appeal. New factual submissions are generally inadmissible in the appeal instance (cf. Senate judgment of September 23, 2014 - VI ZR 358/13, BGHZ 202, 242 para. 20 with further references - Doctors' Assessment II). Neither the judgment on appeal nor the minutes of the meeting indicate that the plaintiff had already made the allegation of a lack of control of the database in the factual instances; ignored lecture in the instances is not shown by the revision.
35
(ee) Insofar as the plaintiff claims that she is forced to check her ratings on a daily basis if she wants to defend herself against unjustified comments, this is correct and affects her interests, but does not mean that the plaintiff's interests override those of the Defendants and third parties prevail. Due to the effects that her professional activity has on others, the plaintiff must be prepared from the outset for her behavior to be observed by a broader public and her performance to be criticized. This applies in particular to the plaintiff as a freelance doctor who offers her services in competition with other doctors (cf. Senate judgment of September 23, 2014 - VI ZR 358/13, BGHZ 202, 242 para. 35 with further references - Doctors' Assessment II). In view of the design of the defendant's portal, both paying and non-paying doctors are exposed to criticism of their professional performance.
36
(ff) The revision asserts that the meaningfulness of the comments in the ratings is limited because they are subjectively colored; if the healing is not successful, the patient rarely praises the doctor. The patient as a medical layman lacks insight into the medical context of a treatment.
37
The plaintiff cannot justify that her interests outweigh these circumstances. The Senate has already explained that, regardless of the subjective nature of the reports and the typically lacking medical expertise of the reviewers, reports from patients represent a useful addition to the previous sources of information. The subjective assessment that is expressed in the ratings can help other people to decide which doctor - especially with regard to the external circumstances of the treatment such as the organization of the practice - best meets the requirements for the desired treatment and also personal preferences (cf. Senate judgment of September 23, 2014 - VI ZR 358/13, BGHZ 202, 242 para. 40 - Doctors' Assessment II).
38
(gg) To the extent that the appeal states that the defendant's grading system leads to distortions, since a single bad rating for a young professional immediately leads to a drop in the average grade, while a renowned doctor who has several ratings can afford to slip up, which is why the informative value of the grading system is limited, it does not follow from this either that the interests of the plaintiff prevail.
39
The screenshot referred to by the appeal shows that the number of submitted ratings that lead to the calculated average grade is specified in the defendant's portal. This makes it transparent for third parties whether a single dissatisfied patient has commented or whether a large number of patients have contributed to the grade. It is in the nature of things that doctors who have been practicing for a long time have a larger group of patients with good or bad experiences than those who are just starting their careers. This does not result in a distortion of the assessments.
40
(hh) The appeal further claims that anonymity on the Internet leads to irrelevant or polemical statements. The doctor was only able to defend against insulting or defamatory comments about the defendant, whose reaction was limited to deleting the comments. A damage to reputation threatens already on the first day of the entry. The doctor could not prevent this, even if he requested the defendant to delete it.
41
According to the findings of the Court of Appeal, the plaintiff is not defenseless against the dangers presented by the rating portal. It can counter untrue factual allegations and insulting or otherwise inadmissible assessments by contacting the defendant and demanding that the content be removed. If the defendant rejects the claim, it can sue the defendant in court, if necessary also by way of temporary legal protection (cf. Senate judgment of September 23, 2014 - VI ZR 358/13, BGHZ 202, 242 para. 36 - doctor's assessment II). In the case of insulting or defamatory comments, the plaintiff also has a right to information against the defendant about the inventory data available there under Section 21 (2) and (3) of the Telecommunications Telemedia Data Protection Act (TTDSG) with the aim of determining the identity of the infringer in order to establish civil law To be able to enforce claims against him (cf. Ettig in Taeger/Gabel, TTDSG, 4th ed., § 21 para. 12 ff.; on the previous provision § 14 para. 3, 4 TMG Senate resolution of September 24, 2019 - VI ZB 39 /18, BGHZ 223, 168 para. 50 ff.; BVerfG, decision of December 19, 2021 - 1 BvR 1073/20, juris para. 25). However, the fact that inadmissible statements are not deleted immediately after they have been posted is a fact that is inherent in the system and must be accepted by those affected.
42
b) The reason for deletion of Art. 17 Para. 1 Letter c DS-GVO does not exist either. In any case, there are overriding legitimate reasons within the meaning of Article 17 (1) (c) half-sentence 1 GDPR for the processing of her personal data attacked by the plaintiff. The overall consideration required in this respect does not lead to any other result than the consideration made under a) to Art. 6 Para. 1 Sentence 1 Letter f (cf. Senate judgments of July 27, 2020 - VI ZR 405/18, BGHZ 226, 285 para 24 mwN; from October 12, 2021 - VI ZR 488/19, WRP 2022, 193 para. 68 and VI ZR 489/19, WRP 2022, 203 para. 71).
43
II. With regard to the priority of application of the present data protection law, which has been finally standardized across the Union, and the comprehensive weighing of fundamental rights to be carried out when examining the right to deletion under Art. 17 DS-GVO, the plaintiff cannot base its claim for the deletion of the basic data on provisions of national German law (cf. Senate judgments of July 27, 2020 - VI ZR 405/18, BGHZ 226, 285 para. 64 with reference; of October 12, 2021 - VI ZR 488/19, WRP 2022, 193 para , 203 marginal number 72; Nolte/Werkmeister in Gola, DS-GVO, 2nd edition, Article 17 marginal number 73).
C
44
Insofar as the plaintiff's revision is directed against the rejection of the auxiliary request, it is inadmissible. The Court of Appeal has effectively limited the admission of the appeal to the question of whether the plaintiff is entitled to the claim asserted with the main application. The consequence of the restriction of the admission to appeal is that the matter in dispute, insofar as it is not covered by the admission, is not subject to the examination competence of the Court of Appeal (cf. Senate judgment of December 17, 2013 - VI ZR 211/12, VersR 2014, 381 para. 58 [insofar not printed in BGHZ 199, 237] - Saxon corruption affair).
45
1. According to the settled case law of the Federal Court of Justice, the admission of the revision can be limited to a factually and legally independent part of the entire dispute, which could be the subject of an independently contestable partial or interim judgment or to which the plaintiff could limit his revision (cf. Senate judgment of 17 December 2013 - VI ZR 211/12, VersR 2014, 381 para. 58 with further references [insofar not printed in BGHZ 199, 237] - Saxon corruption affair).
46
2. Such a limited revision approval is to be assumed in the present case. The decision-making formula of the appeal judgment does not contain any addition that restricts the approval of the revision pronounced there. However, the restriction of the right to appeal can also result from the reasons for the decision. It corresponds to the settled case law of the Federal Court of Justice that the operative part is to be interpreted in the light of the reasons for the decision and that a limited appeal admission is therefore to be assumed if this is clear from the reasons for the restriction. This is generally to be assumed if the question considered by the court of appeal to be relevant to admission only arises for a clearly definable, independent part of the dispute (cf. Senate judgment of December 17, 2013 - VI ZR 211/12, VersR 2014, 381 para. 58 with further references [ insofar not printed in BGHZ 199, 237] - Saxon corruption affair).
47
This is the case here. The reasons for the appeal judgment show that the court of appeal only saw a legal question justifying the appeal to the court of appeal as to whether the design of the defendant's rating portal met the requirements that the Senate set in the judgment of February 20, 2018 - VI ZR 30/17 , BGHZ 217, 340 - Ärztebewertung III with regard to the defendant's position as a "neutral information broker" and whether this criterion is still relevant at all since the introduction of the General Data Protection Regulation. In this respect, the court of appeal also referred to the appeal granted by the Cologne Higher Regional Court in the judgment of November 14, 2019 - 15 U 126/19 (MMR 2020, 186). Those proceedings deal exclusively with the question of whether a doctor may be listed there against his will with regard to individual aspects of the design of the defendant's rating portal and not with a claim to the deletion of a specific user rating.
sides
by Pentz
Oehler
Small
Linder
