OGH - 6Ob129/21w
|OGH - 6Ob129/21w|
|Relevant Law:||Article 4(1) GDPR|
Article 6(1)(f) GDPR
Article 17(1)(d) GDPR
Article 79 GDPR
Article 85 GDPR
§ 9 Austrian Data Protection Act (Datenschutzgesetz - DSGV)
§ 1330 Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch - ABGB)
§ 16 Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch - ABGB)
|Parties:||unknown teacher (claimant)|
developer of a platform to rate teachers (first defendant)
company providing a platform to rate teachers (second defendant)
|National Case Number/Name:||6Ob129/21w|
|European Case Law Identifier:||ECLI:AT:OGH0002:2022:0060OB00129.21W.0202.000|
|Appeal from:||OLG Wien (Austria)|
11 R 51/21g-31
|Appeal to:||Not appealed|
|Original Source:||Rechtsinformationssystem des Bundes (RIS) (in German)|
The Austrian Supreme Court held that data processing of an app created to rate school teachers is not exempt from any provisions of the GDPR under national law implementing Article 85 GDPR. Processing can be based on legitimate interests under Article 6(1)(f) GDPR.
English Summary[edit | edit source]
Facts[edit | edit source]
In 2019, the first defendant (the "developer") developed an app for students to rate school teachers (the "app"). In December 2019 the developer founded the second defendant (the "platform"), a limited liability company, and offered the app for download using the platform.
In early 2020, the Austrian Data Protection Authority conducted an ex officio investigation into the platform's data protection conduct. This investigation was later ceased without a formal decision.
The claimant was a school teacher whose name and school could be seen in the app, making him subject to ratings by users of the app. They argued that the data processing on the app violated their rights to data protection. They never consented to be subject to ratings on the app and argued that there was also no other legal basis under Article 6(1) GDPR that the app could rely on to make the data processing lawful. They further argued that the app didn't provide sufficient safeguards to prevent people other than their students to rate them. In their lawsuit, the teacher demanded the first instance court, Landesgericht Wien (LG Wien), to disallow the possible future processing of his personal data by the defendants and to order the defendants to erase the data relating to the teacher under Article 17 GDPR.
The LG Wien dismissed the lawsuit, holding in essence that the legitimate interests to provide ratings on the teacher outweighed their interests under Article 6(1)(f) GDPR. Hence the court considered the processing to be lawful. The teacher filed an appeal.
The second instance court, Oberlandesgericht Wien (OLG Wien), upheld the lawsuit and ordered the developer and the platform to stop the processing until it was ensured that only actual students of the teacher could rate them. It argued that, as the app offered no safeguards against unjustified ratings by random strangers, the teacher's interest under Article 6(1)(f) overrode that of the developer and the platform and the data were to be deleted under Article 17(1)(d) GDPR.
The developer and the platform filed an appeal in which they also argued - for the first time - that the rating of teachers served journalistic purposes within the meaning of Article 85 GDPR and that § 9 Austrian Data Protection Act (Datenschutzgesetz - DSG) exempted them from the necessity of a legal basis under Article 6 GDPR (note: Under § 9 DSG, Chapters II to VII and Chapter IX of the GDPR are supposed to not apply on processing activities for journalistic purposes).
Holding[edit | edit source]
The Supreme Court (Oberster Gerichtshof - OGH) overturned the OLG Wien's decision.
First, it assessed in detail, whether § 9 DSG - which was adopted under the opening clause of Article 85(2) GDPR - applied on the processing of the teacher's data in the app. It held that the mere provision of a rating for each teacher - which is no more than calculating the average of all ratings given - did not serve journalistic purposes. Processing for journalistic purposes would require a certain extent of journalistic editing and possible effect on the public's opinion which the mere rating of individual teachers did not have. Hence, the GDPR fully applied to the app.
Second, the OGH disagreed with the OLG's assessment of the balancing of interest under Article 6(1)(f) GDPR. According to the OGH, there might be a certain risk of unjustified ratings by strangers but the rated teacher must accept this to a certain extent as the ratings only concerned the teacher's professional activities and not their personal life. Hence, the OGH saw no necessity to require students to create accounts with their actual names in order to prevent ratings by people who are no students of the teacher.
This reasoning is also backed by the German Supreme Court's case law, which considered the rating of a teacher on an online platform lawful (BGH VI ZR 196/08, www.spickmich.de). In essence, the OGH held that the legitimate interests of the defendants and the users of the app override those of the teacher under Article 6(1)(f) GDPR and upheld the appeal.
Comment[edit | edit source]
Share your comments here!
Further Resources[edit | edit source]
Share blogs or news articles here!
English Machine Translation of the Decision[edit | edit source]
The decision below is a machine translation of the German original. Please refer to the German original for more details.