OLG Köln - 15 U 126/19
From GDPRhub
| OLG Cologne - 15 U 126/19 | |
|---|---|
 | |
| Court: | OLG Kôln (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 17(1)(d) GDPR |
| Decided: | 14. 11. 2019 |
| Published: | n/a |
| Parties: | anonymous |
| National Case Number: | 15 U 126/19 |
| European Case Law Identifier: | ECLI:DE:OLGK:2019:1114.15U126.19.00 |
| Appeal from: | LG Bonn (Regional Court) |
| Language: | German |
| Original Source: | Justiz NRW (in DE) |
The Higher Regional Court of Cologne (Oberlandesgericht Köln) ruled on the interplay between the “right to objection” and the “right to erasure” under the GDPR.
English Summary
Facts
The plaintiff is a dental specialist and demanded that the defendant, which operates a rating portal for doctors with more than six million users per month, delete his data published on this portal without his consent. The Court of First Instance found that the plaintiff could request the deletion of his personal data pursuant to Article 17(1)(d) GDPR since the data was unlawfully processed.
The defendant claimed that its activities fall under exception in (Article 85 GDPR) read in conjunction with Recital 153 and the right to freedom of expression and information as it carries out processing activities for journalistic purposes.
Dispute
Is a platform that grants certain benefits to "premium" listings a journalistic platform?
Holding
The Higher Regional Court focused in particular on whether the evaluation site was a “neutral information broker” by granting customers “hidden advantages” - terms developed through the case law of the Federal Supreme Court to assess whether the exception in Article 17(3) GDPR applies. The court examined the various functions of the site on a case by case basis and found that the site left the role as a “neutral information broker” through four of the contested functions. The controller can therefore not be seen as a journalistic platform.
The doctors were therefore given the right to erasure under Article 17 GDPR.
The Court admitted the appeal (“Revision”) to the Federal Supreme Court.
→ See the parallel case OLG Cologne - 15 U 89/19.
Comment
Share your comment here!
Further Resources
Share blogs or news articles here!
English Machine Translation of the Decision
The decision below is a machine translation of the original. Please refer to the German original for more details.
DECISION
I. The plaintiff is a specialist dentist for oral surgery and is demanding that the defendant, which operates a rating portal for doctors with over six million users per month, delete his data published on this portal without his consent and refrain from publishing this data in connection with a deviating presentation to paying customers, which is described in detail in the motions of action.
Reference is made to the contested decision for further details and for the applications at first instance.
The Regional Court granted the action in its entirety and stated as justification that the plaintiff was entitled to both a claim for cancellation under Art. 17 Para. 1 d) DSGVO and a right to injunctive relief against the reinstatement of his data in the online database under §§ 823 Para. 2, 1004 Para. 1 S. 2 BGB analogously in conjunction with Art. 17 para. 1 d), 6 para. 1 DSGVO. In accordance with the principles as they were established by the Federal Court of Justice, inter alia in its decision of 20 February 2018 (VI ZR 30/17, BGHZ 217, 340), the interests of the plaintiff in the deletion of his data outweigh the interests of the defendant. For even taking into account the fact that the defendant had made changes to the presentation in the evaluation portal, it did not continue to act as a neutral information provider, taking into account the overall concept. Rather, the linking of data which (still) serve the legitimate information interests of the public with such data which go beyond that and which are intended precisely to improve the position of the paying physicians compared with their non-paying competitors leads to the fact that the paying physicians are provided with advantages which are not obvious to an average visitor to the evaluation portal. In particular, the defendant does not establish such an obviousness by identifying a paying doctor on his profile page by means of a symbol with the text 'gold' or 'platinum'.
The defendant has lodged an appeal against this judgment and is pursuing its first instance motion to dismiss the action.
It argues that a claim for cancellation by the plaintiff is excluded because it - the defendant - falls under the media privilege of Art. 85 DSGVO in conjunction with Art. 85 DSGVO. Art. 38 BayDSG. In contrast to the previous legal situation in § 41 of the old version of the Federal Data Protection Act (BDSG), on which the so-called "spick-me" decision of the Federal Court of Justice (judgment of 23 June 2009 - VI ZR 196/08, MMR 2009, 608) was based, the focus is now no longer on the activity of the "press", but rather on processing for "journalistic purposes". The European Court of Justice had already stressed in earlier decisions that the concept of journalism was to be interpreted very broadly and in particular was not limited to the conventional press (ECJ, Judgment of 16.12.2008 - C-73/07, EuZW 2009, 108 - Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and others). This view is also reflected in Recital 153 of the DSGVO, which prompted the Austrian data protection authority to affirm the media privilege in a decision of 13 August 2018 (Case No.: DSB-D123.077/0003-DSB/2018). Furthermore, in its judgment of 12.2.2019 (C-345/17, NVwZ 2019, 465 - Sergejs Buivids/ Datu valsts inspekcija), the European Court of Justice affirmed the media privilege for the publication of a video on platform B by a private individual not professionally active as a journalist. The defendant takes the view that those considerations should apply to it mutatis mutandis, since the data of the individual doctors listed with it are processed in order to allow an exchange of views on the doctor in question or to provide users with information on that doctor so that they can exercise their right to choose their own doctor freely. This public interest in information could not be satisfied by means of classical journalism. Furthermore, the individual evaluations served solely to disseminate information and opinions about the respective physician; this exchange of opinions could not be circumvented by the physician using the platform on which the statements were made with the request that no reports be made about him.
The defendant further takes the view that, even independently of the application of the media privilege, the data processing on its portal is lawful, since it has a legitimate interest within the meaning of Article 6(1)(f) of the DPA. It operates the portal in order to ensure greater transparency of services in the health care system through the exchange of opinions between patients and to enable the user to make an informed decision. The portal is thus necessary to guarantee the patients' right to free expression of opinion and it would be tantamount to censorship if the plaintiff were able to have his profile on the defendant's page deleted at will and thus also remove unwelcome ratings from the net.
The Federal Court of Justice has ruled on several occasions that there is a considerable public interest in a complete list of physicians in rating portals. The opposing interest of the plaintiff, on the other hand, was to be given less weight, since on the one hand it concerned data from his professional activity and thus from his social sphere, which he himself had made publicly accessible on his website. On the other hand, the purpose of the data processing is to enable an exchange of opinions and information about the plaintiff, which affects the privileged area under Article 17 paragraph 3 a) of the DPA. Furthermore, it is not a disproportionate consequence for the plaintiff to be exposed to competitive pressure from other physicians.
The plaintiff was free to object to the data processing in accordance with Article 21 (1) sentence 1 DSGVO, which requires that special circumstances exist in the person of the data subject; however, he did not assert these in any of his letters.
Furthermore, the Regional Court did not sufficiently deal with the decision of the Federal Court of Justice of 20 February 2018 (VI ZR 30/17, BGHZ 217, 340) and did not include the core justification of the hidden advantage. On the one hand, it had to be taken into account that the DSGVO had not yet been applied in this decision. On the other hand, in the case decided there, an advertising banner with paying physicians was shown in the profile of the non-customer himself, from which the Federal Court of Justice derived that the data of the non-customers were used as an advertising platform for the paying competition. This circumstance, in combination with the absence of such a banner for premium customers, allegedly gave users the impression that the premium customer had no local competition. Only this impression - and not only the lack of a banner for premium customers - was the hidden advantage for the premium customer, which is why the Federal Court of Justice felt compelled to grant the claim for cancellation. In this respect, the decision of the Federal Court of Justice shows that a simple granting of an advantage is not sufficient for the claim for cancellation, but rather that a hidden advantage must be granted. It was not only the existence of the ad banner that was decisive, but also the fact that this banner was only displayed in profiles of non-customers and, in addition, on profiles of customers it was not made sufficiently clear why such a banner was not displayed there. It was only through this combination that the Federal Court of Justice saw the danger that the user might get the impression that the premium customer had no local competition. In this respect, a "hidden advantage" within the meaning of the Federal Court of Justice's case law requires that the premium customer has an advantage and that this advantage in turn has a concrete negative effect on the non-customer.
The defendant is of the opinion that the design of the portal objected to by the plaintiff does not allow such a hidden advantage to be granted.
The advertising banner in the profile of the non-customers no longer exists and the advertisements used by the plaintiff as a result of a search for a doctor are also no hidden advantages for premium customers. The advertisements are clearly identified as such and graphically distinguished from the search results, so that the user becomes aware that a financial benefit was paid for these advertisements. Furthermore, the advertisements in dispute affect both premium customers and non-customers equally. According to the Adword case law of the Federal Court of Justice (BGH, judgement dated March 12, 2015 - I ZR 188/13, GRUR 2015, 607), the plaintiff, as a businessman in free competition, must accept advertising for third parties.
The professional articles also do not represent any hidden advantages for premium customers, because they are not advertising for the respective author, but information about topics of interest to the readers. The link to the author contained in the articles is owed copyright regulations. The mere fact that the user may be able to access a profile of a premium customer through several clicks does not represent a negative consequence for the non-customer, especially since various doctors are suggested to the user when searching for a doctor.
Nor does the linking of suitable treatment areas constitute a disguised granting of advantages, as the user is only referred to a general ranking of physicians in which both premium customers and non-customers are promoted. In this respect, an impression comparable to the decision of the Federal Court of Justice of 20.2.2018, according to which the premium customer has no local competition, could not be created by this list/ranking. As the link is located at the very end of the profile, it does not arouse the interest of the user, who in case of doubt is only interested in the doctor's ratings anyway.
Insofar as the Regional Court had criticised all the features which the premium customer could use to "pretty up" his profile, this was not enforced either. The users are aware that this is a rating portal and not the own homepage of the respective doctor. In this respect, the users would not draw the conclusion that the respective physician is not interested in a good external presentation or in the acquisition of patients if photos etc. are missing. Users could also search for the physician on the Internet and thus find the physician's own homepage - if available. In addition, it is a considerable restriction of their - the defendant's - entrepreneurial activity, if one gives them guidelines as to how far they enable doctors to "beautify" their profile for a fee. The user is informed in the profile of the premium customer by means of premium seals/flags and various mouse-over texts that it is a profile of a paying customer. Contrary to the statements of the Regional Court, the premium seals/flags could not give the user the impression that he is dealing with a particularly distinguished doctor. For one thing, it is customary in business transactions to subdivide the customer status with gold and platinum. On the other hand, the portal focuses on the awarding of marks, which means that the user does not assume that the seal refers to the performance of the respective doctor. This is further supported by the fact that there are flags with "TOP 5" and "TOP 10" for doctors who are particularly well placed in the ranking - regardless of their customer status - which means that the user has even less reason to see a statement on performance in the "Gold" and "Platinum" seals. In any event, a claim for cancellation also fails on the basis of Article 17.3 a) DSGVO. This is because the socially desired ratings of users would also be deleted if the defendant were forced to delete the profile, which would amount to censorship.
The defendant claims that the Court should
vary the judgment of the Landgericht Bonn of 28 March 2019 (18 O 143/18) and dismiss the action
The applicant claims that the Court should
dismiss the defendant's appeal.
He defends the decision of the regional court and elaborates on his statements at first instance.
The defendant's business model is based on the advantageous presentation of premium customers in order to direct the users of the portal to their profiles as inconspicuously as possible but in a targeted manner. Although the existing commercial interest of the defendant does not mean that it is generally not allowed to process data, the defendant is not allowed to use the meaningless basic profiles of the non-paying physicians to sell its own services and to abuse the basic profiles as a marketing instrument. The plaintiff has divided the advantages of the paying premium customers, which the plaintiff considers inadmissible, in comparison to the basic customers, who in his view are "forcibly listed" in the portal, into four groups. In group 1 (motions 2 a) - 2 g)), he summarizes cases of use of the profiles of basic customers as "advertising space" for premium customers and third-party companies, whereas profiles of paying physicians remain free of such advertising. In Group 2 (Motions 2 h) - 2 q)), the plaintiff includes opportunities for paying physicians to "upgrade their own profile" for the purpose of positive withdrawals from non-paying physicians. Group 3 (Motions 2(r) - 2(v)) includes opportunities for paying physicians to present themselves more favourably than non-paying physicians outside their own profile. Finally, Group 4 (Motions 2(w) - 2(x)) lists improved ways of contacting the defendant that are available to paying physicians.
The defendant's submission on the media privilege was already predicted due to delay and, due to the lack of journalistic activity on the part of the defendant, was also not applicable in terms of content, since the simple collection of names and practice addresses was not covered by Art. 85 DSGVO. The defendant merely provides a platform with the profile and the master data used there, which forms an external framework for the dissemination of individual comments by third parties, but which the defendant does not adopt as its own, so that the opinion-forming effect is precisely not - which is necessary - a formative component of its offer as a provider with a data collection and listing; furthermore, the media privilege is not a general opinion privilege. Moreover, the defendant's view of the media privilege is in blatant contradiction to the fact that the defendant always relies on the liability privileges as a provider under Section 10 German Telemedia Act in all disputes about illegal evaluation content. However, if it did not want to be held liable for third-party content which could possibly be regarded as privileged opinion, it could hardly invoke a media privilege with regard to precisely this content.
The defendant cannot rely on the decision of the Federal Court of Justice of 23.9.2014 (VI ZR 358/13, GRUR 2014, 1228) and the transparency in the health care system required there, as the present case does not concern the fundamental admissibility of evaluation portals, but rather their concrete design. He - the plaintiff - had nothing against a rating portal which behaved neutrally towards all customers; he only objected to the design elements of the portal chosen by the defendant itself, which had broken the principle of neutrality, so that the interests of the defendant no longer prevailed.
The defendant's attempt to qualify the advantages concealed by its platform as "simple" advantages without data protection relevance is futile. The Regional Court correctly stated that the average user cannot see that the profiles of certain doctors are more advantageous because this is a paid service. Thus, the unintentionally created profiles of non-paying doctors were used as an advertising platform for both the services of the competition and those of the defendants. The information stored in mouse-over texts is not sufficient to inform the user.
Furthermore, the defendant fails to recognise that the present case has nothing to do with the right of objection under Article 21 of the DPA, since this is directed against data processing which is permitted under Article 6(1)(e) or (f) of the DPA and which may not be continued in the specific case because of the particular situation of the person concerned. However, he - the plaintiff - is objecting to data processing that is not covered by Article 6 (1) (f) of the DPA and is therefore illegal. Nor did the claim for cancellation asserted by him presuppose a prior objection, although the plaintiff took the view that an (implied) objection was to be seen in his letter of 27 March 2018 anyway (Annex K 46).
The plaintiff is further of the opinion that the Regional Court correctly identified the hidden advantages granted by the defendant and found that the defendant had abandoned its position as a "neutral information intermediary". The entry into force of the DSGVO had not changed the principles recognised by the Federal Court of Justice in its judgment of 20 February 2018, and Article 17.3 a) DSGVO did not give further priority to freedom of communication. On the contrary, in the case of rating portals, it had to be taken into account in the weighing up of interests that the person concerned was in a situation in which he could no longer regularly overlook, let alone control, who communicated about him, when what and on what occasion. Hidden advantages would be present with the Regional Court if the defendant no longer restricted itself to summarizing the basic data of the individual physician in profiles on its evaluation portals and to displaying the marks or free text comments of the users, but instead either uses the data as an advertising platform for the paying competition or itself advertises its services to the detriment of the non-paying customers in such a way that they are persuaded to join the group of paying physicians in order not to be disadvantaged by a less advantageous presentation and insertion of advertising; both take place on the defendant's portal. The latter also did not sufficiently inform its customers, although the plaintiff is of the opinion that even an explanation could not necessarily overcome the effects objected to by the Federal Court of Justice.
The "appropriate professional articles" of the paying physicians would be advertised on the pages of the non-paying physicians. If, however, the articles were to "fit" professionally, it should be noted that the authors would then be in competition with the doctor on whose profile the reference was published. On his - the plaintiff's - profile, there would be "matching" articles from another dentist with premium status and a single click would take you to the profile page of this colleague. On the profile page of a platinum customer, however, no such display is to be found. If - as the defendant believes - the display of professional articles is associated with added value, it is not understandable why it does not (a fortiori) offer this added value to its paying customers. Moreover, copyright law only requires the author to be named, but not a link. On the other hand, platinum customers' websites contain neither professional articles nor references to special treatment areas nor advertising for third parties. The decisive point is that the user is not informed that the numerous features are only activated against payment. This is not achieved by the premium flags, as the average user would not get the idea that a text is hidden behind the seal.
The applicant takes the view that the deletion of his profile does not constitute unlawful censorship of his evaluations with an overall mark of 1.8, which he does not, moreover, object to, since there are still a number of alternative ways of evaluating services on the internet.
As regards the parties' further submissions on the merits, reference is made to the pleadings exchanged during the appeal proceedings.
II. The defendant's appeal is partially well-founded. In addition to the claim for cancellation, the plaintiff is entitled to the asserted claim for injunctive relief only with regard to the motions under 2 a) and 2 b) and partially with regard to the motion under 2 d), so that the rest of the regional court decision had to be amended and the action dismissed.
1. the plaintiff is entitled to a claim for omission of the processing of his data from §§ 823 para. 2, 1004 BGB analogously in connection with Art. 6 para. 1 f) DSGVO in the form of a publication of the same to the querying users (Art. 4 No. 2 DSGVO) only partially. This is because the weighing of his interests against those of the defendant and the users of the portal, which must be carried out in accordance with Art. 6 Para. 1 f) DSGVO, is in his favour only for some of the points of the presentation in the evaluation portal which he attacks with the complaint.
a. The provision in Art. 6 para. 1 f) DSGVO relevant to the claim for injunctive relief asserted by the plaintiff is applicable in the present case, since the defendant did not submit a claim for injunctive relief under Art. 85 para. 2 DSGVO in conjunction with Art. Art. 38 BayDSG, the defendant cannot invoke the so-called media privilege, which as a purely legal issue had to be examined by the Senate irrespective of § 531.2 ZPO.
It can and should be left open whether such a blanket exemption regulation - the content of which is based on § 41 BDSG old version - can and should continue to be legally valid today in the same way as the provisions of the DSGVO for "journalistic" activities as measured against Art. 85 para. 1 and 2 DSGVO (Senate, decision of 18 July 2019 - 15 W 21/19, BeckRS 2019, 15695 with further references).
This is because the defendant is not actually processing data for "journalistic purposes" within the meaning of Article 38 BayDSG.
aa. Although the defendant is to be endorsed at least in so far as such regulations are to be interpreted rather broadly in view of the freedom of the press guaranteed by fundamental rights, but also in an interpretation of national law in conformity with European law with regard to Recital 153 of the DSGVO (ECJ, Judgment of 16.12.2008 - C-73/07, EuZW 2009, 108 marginal no. 56 Tietosuojavaltuutettu/Satakunnan Markkinapörssi Oy and others; of 14.2.2019 - C-345/17, NVwZ 2019, 465 marginal no. 49/51 - Sergejs Buivids/ Datu valsts inspekcija; for Art. 38 BayDSG also BeckOK Informations- und Medienrecht/Söder, Ed. 24, Art. 38 BayDSG marginal nos. 5, 7). For this reason, not only media companies are covered, but also everyone who is "active as a journalist" (ECJ, judgement of 16.12.2008 - C-73/07, EuZW 2009, 108 para. 58; v. 14.2.2019 - C-345/17, NVwZ 2019, 465 para. 52). Nor does it depend on the medium by which data is conveyed and disseminated, so that traditional information carriers are covered just as much as modern media (ECJ, judgment of 16.12.2008 - C-73/07, EuZW 2009, 108 marginal 60; from 14.2.2019 - C-345/17, NVwZ 2019, 465 marginal 57). Finally, it is not harmful that the actor has the intention of making a profit, because a certain commercial success can be an indispensable prerequisite for the continued existence of professional journalism (ECJ, judgment of 16 December 2008 - C-73/07, ECR 2009, 108 para. 59). Rather, the only decisive factor for classification is that the activities in question have the (exclusive) purpose of disseminating information, opinions or ideas to the public by whatever means of transmission, which is a matter for the national court to examine in each case (ECJ, judgment of 16 December 2008 - C-73/07, EuZW 2009, 108 para. 59). 16.12.2008 - C-73/07, EuZW 2009, 108 para. 61 f.; v. 14.2.2019 - C-345/17, NVwZ 2019, 465 para. 53 f./59 f.) However, it can expressly not be assumed that any information published on the Internet that refers to personal data is already covered by the term "journalistic activities" (ECJ, judgment of 14 February 2019 - C-345/17, NVwZ 2019, 465 marginal no. 58). Although the exclusivity of the journalistic purpose, which is still referred to in Art. 9 DSRL, has not been included in the wording of Art. 85 DSGVO and Art. 38 BayDSG, Recital 153 of the DSGVO continues to refer to this requirement, so that - when interpreting the law, the recitals do not have an absolute binding effect (see also the Court's judgment of 14 February 2019 - C-345/17, NVwZ 2019, 465 para. 58), see ECJ of 19 June 2014 - C-345/13, EuZW 2014, 703 marginal no. 31 - C Ltd/D and others) - at least to avoid further problems of delimitation and in systematic demarcation from Article 89.4 of the DSGVO, which explicitly regulates misuse - the previous principles must be retained (see also BeckOK DatenschutzR/Stender-Vorwachs, Ed. 28, Article 85 marginal no. 20; Frey, in: Schwartmann et al, DSGVO/BDSG, 2018, Art. 85 para. 25; further probably Schiedermair, in: Ehmann/Selmayr, DSGVO, 2nd ed. 2018, Art. 85 para. 24).
bb. Admittedly, the mere collection and administration of foreign expressions of opinion also has an information value for the formation of public opinion (cf. Michel, ZUM 2018, 836, 840). However, this alone does not constitute a portal operator's own journalistic activity. Portal operators such as the defendant, who do not adopt the opinion-forming contributions of third parties - which may even be protectable as a journalistic activity (see Sydow/Specht/Bienemann, Europäische Datenschutzgrundverordnung, 2nd ed. 2018, Art. 85 marginal no. 13 with further references) - even to avoid their own liability, and who only implement the protective mechanisms against misuse of the rating platform required by case law, essentially only have a mediating role. However, this role cannot itself already be understood as an opinion-forming activity in itself, but at best as a mere auxiliary service for the better dissemination of (third-party) information. Against this background, it rightly continues to be the prevailing opinion that in the case of rating portals with automatic lists of ratings without their own journalistic/editorial pre-/post-processing of the rating contributions, it is not yet possible to speak in principle of a "journalistic purpose" (see Buchner/Tinnefeld, in: Kühling/Buchner, DS-GVO/BDSG, 2nd ed. 2018, Art. 85 marginal no. 25Frey, in: Schwartmann and others, DSGVO/BDSG, 2018, Art. 85 marginal note 18; Leutheusser-Schnarrenberger, in: Schwartmann and others, DSGVO/BDSG, 2018, Art. 17 marginal 58; BeckOK Informations- und Medienrecht/Lent, Ed. 24, § 54 RStV marginal 5, loc. cit.; Sydow/Specht/Bienemann, European Data Protection Regulation, 2nd ed. 2018, Art. 85 marginal 13, loc. cit.Helfrich, in: Forgó/Helfrich/Schneider, Betrieblicher Datenschutz, 3rd ed. 2019 Chapter 3 marginal 19; Schantz, in: Schantz/Wolff, Das neue Datenschutzrecht, 2017, G 1323; Pauly, in: Paal/Pauly, DS-GVO/BDSG, 2nd ed. 2018, Art. 85 marginal 8). In this respect, the plaintiff also rightly points out that the defendant cannot - in comparison to the legal dispute about the deletion of individual entries - "change roles" and mutate from a mere information broker with only a reactive duty to check to a disseminator of his own opinions, who may comprehensively invoke freedom of opinion and freedom of the press.
cc. In its case-law on rating portals, which was still issued in relation to Section 41 BDSG (old version), the Federal Court of Justice (BGH) only assumed a sufficiently high level of journalistic and editorial quality which could justify its own privileged treatment under data protection law "if the opinion-forming effect for the general public is a formative component of the offering and not merely a decorative accessory" (BGH, judgement of 23 June 2009 - VI ZR 196/08, MMR 2009, 608; see also BGH of 20 February 2018 - VI ZR 30/17, GRUR 2018, 636). The technical recording of evaluating third-party contributions and the automated compilation and calculation of evaluation scores alone are not sufficient for this purpose (loc. cit., marginal no. 22). Even if the European Court of Justice does not place high demands on editorial processing and has considered journalistic work possible, if it is only a matter of publishing publicly available tax data arranged alphabetically, regionally and according to income classes (ECJ, Judgment of 16.12.2008 - C-73/07, EuZW 2009, 108 para. 62; later the national court denies this; this is not objectionable ECtHR, judgment of 21.7.2015 - 931/13, BeckRS 2015, 112278), this therefore does not mean that the above-mentioned content-restricting features should be dispensed with when disseminating information.
dd. In the opinion of the Senate, the requirements laid down by the Federal Court of Justice, loc. cit. are still convincing in fact and therefore continue to apply under the regime of Art. 85 DSGVO, especially as online services would otherwise enjoy a comprehensive privilege under data protection law in the simplest possible way, which would obviously not be covered by the purpose of the standard (applicable Buchner/Tinnefeld, in: Kühling/Buchner, DS-GVO/BDSG, 2nd ed. 2018, Art. 85 marginal 25). Such an interpretation is also not required from a fundamental rights point of view because the conflicting fundamental rights concerns can be taken into account, for example, in the context of the weighing of interests under Article 6.1 f) DS-GVO. The defendant with its concrete business model is therefore still not covered by the so-called media privilege.
ee. Nor does the defendant's "intermediary function" for the individual ratings of the portal users result in a solution that is more favourable to it. Whether this could be different - as the defendant discusses using the example of the deletion of a video on platform "B" in view of the above-mentioned case law of the European Court of Justice - if, for example, a portal operator is called upon to remove a user's material protected as a publication for journalistic purposes does not require a decision by the Senate. For here it is precisely not a question of protecting the individual opinions of users, but only of marginal issues in portal design, which as such, however, only and exclusively concern the purely economic activity of the defendant without direct reference to the individual ratings themselves, which is also shown by the fact that the plaintiff does not object at all to a purely neutral rating portal. That - what becomes virulent with the deletion - individual protected user ratings are then possibly deleted as well, bears no other view, because this only represents "collateral damage" in the purely economic (and especially not journalistically dedicated) area of portal design. It is therefore irrelevant that - as the defendant claims - no publisher or journalist is in a position to obtain such a wide range of opinions on the services of the respective doctors as a rating portal can. For even then, the defendant does not limit itself with its portal to obtaining and presenting the "large spectrum of opinions about the service", but in addition to this, it also designs its portal for private economic considerations in a certain (chargeable) way.
Nor is the decision of the Austrian data protection authority relied on by the defendant transferable to the present case: There, a decision had to be made on a user's request for deletion of the postings published by him in an online forum which was set up as a discussion platform on which users could comment on certain articles placed online, evaluate other users' comments and enter into mutual discussions. Thus, the present case, in which the opinions of the users are also published, but the claim is only directed against the defendant because of the pure portal design alone, but which neither gives these opinions nor edits them, is not comparable.
To the extent that the defendant finally asserts that the Federal Court of Justice has decided on several occasions that there is a considerable public interest precisely in a complete list of doctors in evaluation portals, this likewise does not apply across-the-board. The Senate is not able to accept the cited decisions of the Federal Court of Justice of 20 February 2018 and 23 September 2018.The Federal Court of Justice merely states that there is a considerable interest in "information on medical services" and that the defendant claims to draw "a complete picture of the user ratings" with its portal, whereby the user ratings could represent "meaningful additions to the existing sources of information". Ultimately, however, this may not be the case, as the following results from the decision of the Federal Court of Justice of 20.2.2018: As soon as the defendant abandons its position as a "neutral information intermediary", it can no longer invoke the public interest in information - be it a complete or an incomplete list of doctors - with regard to the basic customers included in such a list without its will. In this respect, the decisive factor here is whether and, if so, which details of the design of the portal this is the case.
b. The defendant is passively legitimized as "responsible party" within the meaning of Art. 4 No. 7 DSGVO for the claim for injunction asserted here by the plaintiff, since as a legal entity it decides on the purposes and means of processing the plaintiff's personal data within the meaning of Art. 4 No. 1 DSGVO, whereby processing within the meaning of Art. 4 No. 2 DSGVO takes place in the form of the collection and storage of the data, its organization and the use or disclosure by transmission to the querying users.
c. The processing of the plaintiff's personal data by the defendant only partially satisfies the requirements of Art. 6 para. 1 f) DSGVO.
aa. Pursuant to Art. 6 para. 1 f) DPA, lawful data processing requires that the processing is necessary to protect the legitimate interests of the defendant and its users and does not outweigh the interests of the plaintiff as a data subject. Within the framework of the individual case assessment required in this way, legal, economic and also idealistic interests and, above all, affected fundamental rights and/or fundamental freedoms of the parties involved and/or affected third parties must be identified (instead of all Simitis/Schantz, DatenschutzR, 2019, Art. 6 marginal no. 98 f. m.w.N.). The data processing must be "necessary" to safeguard the legitimate interests, which requires a comprehensive proportionality test (op. cit., marginal 100) and the interests of the data subject must not outweigh the interests of the data subject (op. cit. marginal 101 f. m.w.r.). In this weighing up of interests, not only the type (criticality) and scope of the data concerned (loc. cit., marginal 105 f.) but also the imminent consequences of the data processing for the data subject (loc. cit, marginal 107 et seq.) and, according to recital 47 of the DPA, the context and the "reasonable expectations of the data subjects based on their relationship with the controller" also play a role, although these may be less important in the case of publicly available information from the social sphere (loc. cit., marginal 110). The latter in particular is important in the case of rating portals because the interest of the persons concerned is already reduced because of their market participation, while on the other hand the public's interest in transparency and competition is great (loc. cit., marginal 132). Otherwise, the foregoing has created a balance between the plaintiff's right to informational self-determination or the protection of private life and his data (Art. 2 para. 1, Art. 1 para. 1 of the Basic Law, Art. 8 para. 1 ECHR, Art. 7 f. GrCh) and the right of the defendants and the users of the portal to freedom of communication (Art. 5 para. 1 GG, Art. 10 para. 1 ECHR, Art. 11 GrCh), whereby the indirect third-party effect of the fundamental right of freedom of occupation to which both parties are entitled from Art. 12 para. 1 GG (cf. also Art. 15 GrCh) must also be taken into account (cf. also BGH, judgement of 20.2.2018 - VI ZR 30/17, BGHZ 217, 340). When weighting the interests of portal users, it must be taken into account that, on the one hand, users can record their experiences of their own visits to the doctor on the portal in question and can be heard with their opinions. On the other hand, the portal also serves to inform potential patients who want to obtain more detailed information about a particular doctor or about doctors of a particular specialty.
bb. In the question of this weighing of individual cases between the above-mentioned positions protected by fundamental rights, the Senate initially continues to proceed from the principles of the decision of the Federal Court of Justice of 20 February 2018 (VI ZR 30/17, BGHZ 217, 340), which also dealt with a certain form of presentation of personal data on the defendant's portal.
(1) Insofar as the defendant asserts in this context that the Federal Court of Justice made the decision of 20 February 2018 under the applicability of the Federal Data Protection Act on Section 29 of the Federal Data Protection Act (old version) and has not yet been able to take into account the requirements of the Basic Data Protection Regulation, this does not, in the opinion of the Senate, lead to a substantial change in the standard of review for the plaintiff's claim for injunctive relief. The principles developed under § 29.1 of the old version of the BDSG can be transferred accordingly to the weighing required under Article 6.1 f) of the DPA, whereby the protected interests from the EU Charter of Fundamental Rights must also be taken into account (see also LG Wuppertal, judgment of 29.3.2019 - 17 O 178/18, BeckRS 2019, 13062), but this can ultimately be left open, because in the specific case, this also does not result in any provisions that deviate from the national fundamental rights that are to be observed in any case and the European Convention on Human Rights, which is to be taken into account as a guide for interpretation, and the parties do not assert such provisions. A cautious recourse to the previous national principles of case-law on the old law as an aid to interpretation in weighing up the merits of the case is not precluded by the fact that, when working with Article 6.1 f) of the DPA, recourse to an "interpretation by Member State" is only possible within the framework of the objective pursued by the DPA of a uniform level of data protection throughout the Union (Recital no. 13) and is therefore subject to the requirement of a uniform interpretation of the conditions of the facts throughout the Union in order to be able to guarantee equal processing conditions for all market participants in the European Union (Recitals 9 and 10; see also Buchner/Petri in: Kühling/Buchner, DS-GVO/BDSG, 2nd ed. 2018, Art. 6 marginal 145; BeckOK Datenschutzrecht/Albers/Veit, Ed. 28, Art. 6 marginal 49; Schwartmann/Klein in: Schwartmann and others, DSGVO/BDSG, 2018, Art. 6 marginal 110). This is because it is a question here of the weighing up of individual cases that is required under both the old and the new law, so that there can be no objection to the link to earlier findings.
(2) In this respect, the defendant's comments on the low level of intervention of the data processing (see pp. 444 et seq.), which can be attributed to the fact that only data from the plaintiff's professional activity and thus from his social sphere are processed here and, in addition, only those data which the plaintiff himself had previously made publicly accessible via his website, do not in themselves already lead to a success of the appeal. These fundamental considerations are already irrelevant for the asserted claims for injunctive relief because in this case it is not a question of the general operation of a (neutral) evaluation platform for physicians, against which the plaintiff also does not appeal after his own lecture, but rather of the concrete design of the portal by the defendant, which treats (paying) premium customers and (non-paying) basic customers differently. Accordingly, in its decision of 20 February 2018 (VI ZR 30/17, BGHZ 217, 340), the Federal Court of Justice (Bundesgerichtshof) did not take the standard of review for the asserted claim to injunctive relief from § 29 para. 1 sentence 1 no. 2 BDSG old version, but from § 29 para. 1 sentence 1 no. 1 BDSG old version, although the "basic data" of the physician in question, which are the subject of the dispute there, had indisputably been taken from generally accessible sources.
cc. In its decision of 20 February 2018, the Federal Court of Justice initially confirmed, in accordance with earlier decisions (BGH, judgement of 23 September 2014 - VI ZR 358/13, BGHZ 202, 242 with further references), that the physician rating portal operated by the defendant fulfils a function approved by the legal system and desired under company law (BGH, loc. cit., nos. 13 - 16).
According to the principles set out in this decision, however, a portal operator can "only assert its legal position, which is based on the fundamental right of freedom of opinion and freedom of the media (Article 5 (1) of the Basic Law, Article 10 of the European Convention on Human Rights), "with less weight" vis-à-vis the persons concerned, insofar as it no longer maintains its position as a "neutral information intermediary" as a portal operator and provides its own customers with "hidden advantages" with the intention of making a profit (BGH loc. cit., nos. 17 - 19). Then the storage and processing of personal data of a data subject without consent in the form of basic data, grades and free text comments on the defendant's portal becomes inadmissible. While the Defendant - as is not denied by the parties to the present proceedings - acts as a "neutral information intermediary" in the case without data protection concerns if it publishes the basic data of the individual physician in the profiles together with grades or free text comments written by patients and other users, it leaves this role as a "neutral information intermediary" if it provides "hidden advantages" to individual physicians through the type of advertising it offers.
The granting of such a "hidden advantage" by an advertisement of the defendant, which is thus decisive for the permissibility of the data processing, consisted in the cited decision of the Federal Court of Justice in that the defendant displayed the reference to competing (paying) premium customers in the immediate vicinity on the profile of a (non-paying) basic customer in a crossbar with a grey background and marked "Display". In contrast, no such advertisement for other customers was displayed in the (more visually appealing) profile of a premium customer - without sufficient disclosure of this fact by the defendant and thus "hidden" -. The Federal Court of Justice then took into account that the procedure of the different insertions was intended to "clearly direct potential patients more strongly to "premium" customers of the defendant", which was an advantage for the premium customers. This could give users the incorrect impression that the paying doctors of the defendant had no local competitors. If potential patients - with which the deplored one also recruited - should be so consciously more strongly led to Premiumkunden and against their will seized physicians are moved purposefully to it, in the profit interest of the portal operator of the group of the paying physicians to join, in order not to be disadvantaged accordingly, outweigh with the consideration then exceptionally the interests of the concerning.
dd. Taking these principles into account, a differentiated examination must be carried out for the question of whether the defendant has left its fundamentally protected position as a "neutral information intermediary" with the respective presentation of personal data on its platform and thus may not process the data concerned without the consent of the data subject: First of all, it is necessary that basic customers are used on the defendant's portal as an "advertising platform" for premium customers. Furthermore, it is necessary to examine whether premium customers are granted an advantage by this form of presentation, which is ultimately "hidden" from the viewpoint of the average user, is therefore not recognisable to him or her and can also, at least potentially, cause a misconception on his or her part as to the cause of the different presentation/treatment. In such a case of the granting of a "hidden advantage" through the type of advertising/design, the defendant's portal no longer serves the sole purpose of information exchange between (potential) patients, whereby the interests of the basic customers admitted without their consent must ultimately be given priority.
Whether, taking these premises into account, the respective design forms of the portal challenged by the plaintiff represent the granting of such a "hidden advantage" and thus an unlawful data processing on the part of the defendant is given, can correctly only be decided in isolation for each individual application and the respective form of presentation of the data on the defendant's platform covered by it.
In particular, the Senate does not consider it admissible to base the assumption that the basic customers have an overriding interest in their right to informational self-determination and in exercising their profession on the fact that the defendant, with its "(current) business model of a partly overt and partly covert unequal treatment of paying and non-paying/non-registered physicians/health professionals, actively intervenes in the competition between physicians/health professionals", it "provides individual physicians/health professionals with partly overt and partly covert advantages via the paid premium packages, through which potential patients - according to the defendant's own advertising - are directed more strongly to the defendant's premium customers", whereas a "compulsory listing for information purposes" is only "(too) tolerated in a neutral evaluation portal that treats all physicians/health professionals equally" (according to LG Wuppertal, Urt. v. 29.3.2019 - 17 O 178/18, BeckRS 2019, 13062).
(1) In that decision, the Landgericht Wuppertal took as its basis the fact that the Premium Packages granted advantages to paying customers which were likely to divert users' attention away from the profiles of non-paying doctors to the profiles of paying customers and thus significantly increase the probability of an appointment being arranged in the practice of a paying customer. The "unloving design" of the profiles of non-paying doctors, which itself contains only little information, also draws attention away from these profiles, especially since the provision of empty fields with the corresponding texts, with reference to the missing entries, could give the impression to potential patients that the non-paying doctors do not have an increased interest in new patients, since they do not use the supposedly simple possibility of introducing themselves to the patients personally and with pictures. In this respect - according to the Wuppertal Regional Court - even openly unequal treatment must be taken into account when weighing up the defendants' interests, because the customer will understandably decide in favour of the profile of a paying doctor with a picture even if he knows the background. A person seeking a doctor would very probably, possibly even with a worse rating, decide solely in favour of the profile of the paying customer with a profile picture and not in favour of the grey silhouette of the non-paying competitor, and also the advertisement on the homepage, the more conspicuous presentation in the searches and in specialist areas and the publication of extracts of his own specialist articles on the profiles of the competitors only increased the overall probability that the users would become aware of the profiles of paying customers.
The Senate considers this interpretation to be too broad and inconsistent with the principles of the decision of the Federal Court of Justice of 20 February 2018 (VI ZR 30/17, BGHZ 217, 340). The Sixth Civil Senate did not solely and exclusively refer to a granted advantage or a better position of premium customers, but explicitly (additionally) examined a "hidden advantage", which in addition was not only linked to a sufficient recognisability for the user, but which (at least potentially) also had to be suitable to create misconceptions in the user, without it obviously being important to create a compelling impression in the sense of the right to express oneself (on the irrefutability of a conclusion in this area, see last BGH, judgment v. v. 2.7.2019 - VI ZR 494/17, NJW 2019, 453; see also Senate, judgment of 7.6.2018 - 15 U 127/17 BeckRS 2019, 7664). The mere fact that the user finds a "visually and content-wise individually designed profile" with premium customers, which "aims at a more appealing effect", has obviously not already been considered a "hidden advantage" in the decision of 20 February 2018 (VI ZR 30/17, BGHZ 217, 340). For in this case, the Federal Court of Justice would not have had to rely - as it did - on the existence of the advertising banner on the profile of the basic customer and the absence of the same on the profile of the premium customer, but could have affirmed the illegal processing of personal data on the very ground that the profile of the plaintiff there did not contain a photo or any other "appealing design".
(2) In making this assessment, the Senate explicitly does not disregard the fact that the Federal Court of Justice in its decision of 20 February 2018 also referred to the decision of the European Court of Justice of 12 July 2011 (C-324/09, EuZW 2011, 754) - albeit with regard to questions of liability - in which the issue was that an operator "had provided assistance which, inter alia which consisted, inter alia, in optimising the presentation of the offers for sale in question or in advertising those offers", which meant that "it could be assumed that it did not take a neutral position between the customer in question, acting as a seller, and the potential buyers, but played an active role which enabled it to have knowledge of or control over the data relating to those offers". Furthermore, the Senate also took into account that in the aforementioned decision the VI Civil Senate also referred, inter alia, to the considerations of Büscher (GRUR 2017, 433, 439 et seq.), according to which an operator leaves the "neutral position" associated with its position as a host provider if it "actively participates in competition in return for payment by advertising or optimising the presentation of individual companies in their favour", which means that in such cases, when weighing up the interests of a complete overview of the persons to be evaluated, there is no longer any reason to give priority to the interests of the individual entrepreneur and his informational self-determination.
For even if these two references could indicate that the Sixth Civil Senate possibly assumed here that a strict principle of "equal treatment" applied to all customers "compulsorily" listed in the defendant's portal (to take into account the possibility of an objection against a compulsory listing when weighing Schwartmann/Klein in: Schwartmann et al., DSGVO/BDSG, 2018, Art. 6 marginal no. 130 f. with further references), the Senate is not able to agree to such a strict principle. On the one hand, in this case, the prerequisite of a "hidden advantage" created by the exploitation of the basic customers as an advertising platform, which was also examined in the decision of 20 February 2018, would ultimately run dry. This argues decisively in favour of the fact that, in addition to the simple granting of an advantage as unequal treatment, further circumstances - a suitability for the creation of error and a resulting potential competitive influence in favour of the premium customer - must be added. On the other hand, if premium customers openly grant advantages to the user in a way that is evident to the user, the weighing of interests under Art. 6 Par. 1 f) DSGVO, in addition to the public interest in portal operation and the interest of the person concerned in the protection of his personal data, the freedom of the defendant to exercise his profession must also be discontinued, whose rating portal - which is essentially approved by the legal system and socially desired - does not become inadmissible solely because the customers are offered certain at least recognisable improvements for a fee, as long as the portal remains a "neutral information provider" only in other respects - particularly in the ratings themselves. In particular in cases in which unequal treatment of paying and non-paying customers is not at all apparent to the user - because it does not penetrate to the outside world, but is only used, for example, in the defendant's internal course of business - such improvements of paying customers are not objectionable, since the freedom of occupation and the business interests of the defendant would not have to take second place to the protection of the interests of the persons concerned for general "equal treatment considerations". In this area, too, it must be taken into account that the weighing of interests is multipolar and that the interests of the users and the evaluators also tend to argue for the platform to be designed as freely as possible, if inadmissible "hidden advantages" in the sense of the above are not granted.
(3) Finally, however, the Senate also considers it too narrow a view to be taken in the final decision of the Cologne Regional Court of 19 December 2018 - 28 O 51/18 (n.v.) to be based solely on whether profiles of basic customers are directly abused as an advertising platform by the direct display of advertisements of paying competitors on the basic profiles and, moreover, to generally trust that the different presentation options are only a consequence of the business decision of the respective physicians, However, this alone does not lead to hidden advantages, because the average recipient can see from the "premium flags" and the mouse-over texts that the customers are paying and that the differentiation between paying and non-paying customers has been the subject of press and TV reporting anyway. Correctly, an individual case study according to the principles outlined above is advisable.
d. With the foregoing, the following then applies in detail to the individual representations of personal data on the platform of the defendant that are challenged by the plaintiff with the lawsuit:
aa. With regard to the request under 2 a), the defendant's appeal is unfounded. For the plaintiff is entitled to injunctive relief inasmuch as his profile referred to a list of other physicians, whereas this did not occur on the profiles of premium customers.
(1) Until the (undisputed) amendment, the reference was made by means of the 'other' button on the left-hand side of the plaintiff's profile, highlighted in grey; below the button was the text 'Oral surgeons or dentists specialising in oral surgery in E', in blue letters. According to the screenshot submitted by the plaintiff (see p. 4), the hint button was used to reach another page with a list on which - due to the lack of local competition in the specialist or focal area of oral surgery - the plaintiff's profile was located at the very top and two competing premium customers ["Dentists (with picture) in the vicinity"] were displayed below. In contrast, such an "other" button was not used in the profile of a premium customer (see p. 5).
(2) This (earlier) design of the portal constitutes a "hidden advantage" in the sense of the case law of the Federal Court of Justice and must therefore be omitted by the defendant in this form.
(a) The plaintiff's profile as a basic customer was used as an advertising platform in the present case, since the user could call up a list of local competitors via the "further" button. On the other hand, this "further" button was not found on the profile of a premium customer without the defendant sufficiently disclosing this there or elsewhere. This form of presentation gave the user the (incorrect) impression that the premium customers did not have any local competitors that could be reached via an "additional" button.
In contrast to the case constellation on which the decision of the Federal Court of Justice of 20 February 2018 was based, the corresponding reference to the local competition of the basic customer is no longer directly displayed - namely in the form of the advertising banner previously used by the defendant - on the basic profile where it could be directly perceived by the average user. Rather, the corresponding list of local competitors was only reached by a detour via the "further" button, which the user first had to click in order to view the then deposited list of local competitors. However, contrary to the view of the defendant, this button was not placed or designed in such an inconspicuous way that the average user would not have noticed it at all. It was immediately recognisable when the basic profile was called up without having to scroll down the page beforehand, and the button in question was also conspicuous, despite the small font, in that no advertising was placed above or below it, thus achieving a certain visual "unique position" which increased the level of attention of the average user. In this respect, the basic customer was used, if not directly as an advertising platform, then at least - and this was to be assessed equally in terms of the intensity of intervention in the opinion of the Senate - as a "jump-off platform" to the profiles of other doctors. Overall, the presentation was thus also suitable for diverting customer flows away from the profiles of the basic customers.
(b) This advantage for the defendant's premium customers, which was justified by the display of the button, was also to be classified as "hidden", because it was not clear to the user when calling up the various profiles why a reference to local competitors was displayed for a basic profile, but not for a premium profile. This button did not even have a mouse-over text or similar (indirect) indication that or why premium customers did not display a link to local competitors. In this context, it is also irrelevant that - as the defendant submits - the linked list of local competitors includes not only premium customers but also basic customers, which is apparently not the case with the list submitted by the plaintiff (pp. 69-72). The decisive factor is not to which other doctor the portal users are possibly redirected to, but rather that such a redirection - to whichever other doctor - does not exist on the profiles of premium customers.
(c) Finally, to the extent that the defendant asserts that the "other" button with a grey background, as can still be seen on the screenshot submitted by the plaintiff (page 3), is no longer used in the meantime and the page is therefore no longer objectionable on this point, this does not preclude a claim for injunctive relief. For the defendant did not make a declaration of discontinuance with the threat of punishment in response to the warning after the first infringement, so that the risk of repetition is indicated due to the infringement that occurred initially. Nor has the presumption of enforceability been shaken by the amendment made, especially since the defendant has always stressed that this should not have any prejudicial effect (i.e. probably LG Wuppertal, Urt. v. 29.3.2019 - 17 O 178/18, BeckRS 2019, 13062 for later amendments during proceedings).
bb. With regard to the request under 2 b), the defendant's appeal is also unfounded. For the plaintiff is entitled to injunctive relief inasmuch as on the list of local competitors previously accessible by means of the reference ("further" button), premium customers were shown differently from basic customers as shown in the picture. Also the different pictorial representation of basic and premium customers on the list linked here - in the opinion of the Senate, incidentally, also beyond the link with the "further" button, in the application relevant according to § 308 (1) ZPO, but here in any case only limited to this - represents a "hidden advantage" in the sense of the case law of the Federal Court of Justice with the consequence that the interests of the defendant are to be given less weight and it must refrain from the corresponding design of the portal in connection with the processing of the plaintiff's basic data.
It is true that base customers and premium customers were not treated differently directly on the profile of the base customer by an advertising banner or link there, as in the decision of the Federal Court of Justice of 20 February 2018, but only on another page of the portal that could be reached via a link. However, the Senate also sees this as granting a "hidden advantage" to the detriment of the basic customers used as an advertising platform, especially as here too there is a risk of creating the false impression that premium customers have no local competition. Incidentally, the defendant gives the user with the proven and linked list the impression - also propagated by itself - of providing a complete overview of the doctors of the corresponding specialty practicing in the relevant area. On this list, to which the basic customers belong only because their data was taken over by the defendant from publicly accessible sources without corresponding consent, the premium customers stand out once again with regard to the colour photo used by them and stand out optically from the mass of proven local competitors.
Even if the Senate does not fail to recognise in this context that the average recipient will not make the final question of his choice of doctor dependent on the use of such a photograph - which in this case is often quite obviously professionally designed and visually appealing - the defendant nevertheless intervenes in the run-up to the final choice of doctor by distracting the competition between local competitors. In any case, with the form of presentation described above, it creates a considerable "optical gap" between basic customers and premium customers, which can also be seen as an advantage in itself. This is because the average user will not take into account the professional competence, but rather the efforts of the respective physician to create an appealing external presentation in the course of acquiring new patients, and will certainly orient his inclination to take a closer look at a certain profile accordingly. Contrary to the grounds of the appeal, the Senate also considers it not insignificant that such a decision by the user may be made unconsciously or subconsciously, which the Senate is incidentally able to decide itself even without in-depth psychological knowledge or obtaining a corresponding expert opinion, since it itself belongs to the targeted public of the relevant evaluation forum. In the present case, it is ultimately necessary to examine whether the defendant is engaged in advertising for the benefit of premium customers - in contrast to the position claimed by it as a "neutral information intermediary" - which is likely to occur precisely in the unconscious and subconscious area of the target public. The Senate does not fail to recognise that it is not the individual basic customer who is misused as an advertising platform, but rather that in the list view only the mass of "imageless" basic customers serves as a "negative anchor" for the paying customers with their visually appealingly designed images for highlighting. In this respect, however, the individual basic customer is quasi a piece in the mosaic or cog in the overall result - intended by the defendant - which, in the opinion of the Senate, must be sufficient for a claim.
The corresponding advantage which the defendant grants to its premium customers listed with a photo in the list, in that it visually distinguishes them from the basic customers with the "loveless" silhouettes and thus allows them to function merely as a "filler" in order to give the corresponding list a scope which meets the defendant's own claim to completeness (cf. the representation on the defendant's homepage: "On A, patients will find the suitable doctor among all registered doctors in Germany"), is also granted "covertly" in the opinion of the senate. It is not clear to the average user from the representation in dispute on the list (see screenshot on p. 7) for what reason certain local competitors of the plaintiff are depicted with a picture on this list, while others are only shown with a grey silhouette.
Finally, this hidden advantage also creates a (further) potentially false impression among Internet users with a possibly competition-relevant effect, because customers may gain the incorrect impression that non-paying basic customers are simply unwilling to give sufficient thought to their external image, which - consciously or unconsciously - is at least suitable for diverting customer flows to premium customers with their neat pictures, especially since the pictures have a considerable "pull effect" from the perspective of an average user.
cc. The defendant's appeal against the conviction in accordance with the motion under 2 c) is well-founded. Because to the extent that the plaintiff objects to the fact that professional articles from premium customers are also linked on his profile, while this is not the case on the profiles of platinum customers, he is not entitled to injunctive relief. The design of the portal in question does indeed represent the use of basic customers as an advertising platform for premium customers, but at least in the case at issue here, this type of advertising does not constitute a "hidden advantage" for platinum customers at the expense of the plaintiff.
(1) The basic use of the basic customer profile as an advertising platform for Platinum Customers consists in the fact that the user is informed by the link "Matching articles by doctors & medical professionals" (see screenshot on page 8) on the profile that other doctors of the same specialty write articles on medical topics and present themselves with these on the portal of the defendant. The profiles of the premium customers concerned are also linked in connection with the naming of the professional articles. On the other hand, the user does not receive any indication on the profiles of Platinum Customers as to which professional competitors of these Platinum Customers have written professional articles, as the corresponding heading on the page is simply missing.
(2) This design of the site gives the average user the incorrect impression that the basic customer does not want to or cannot publish corresponding specialist articles, which either indicates a lack of professional qualification or a lack of commitment in the context of scientific activity or in the context of attracting new patients and thus has a potentially anti-competitive effect. It is true that on the profiles of the basic customers - so also on the profile of the plaintiff - the fade-in "Article by Dr. ... Are you Dr. ...? Are you Dr. ...? Write article now" is displayed on the profiles of the basic customers - as well as on the profile of the plaintiff - where a mouse-over text indicates that these and many other functions can be used when booking a premium package of the defendant. However, this is not sufficient as an indication for the average user to deny a "hidden" advantage, since his reliable information about the reason for the unequal treatment in view of the mouse-over text design is more likely to be random. Contrary to the statements of the Regional Court of Cologne in the decision of 19.12.2018 (28 O 51/18, Annex B1) submitted by the defendant, the Senate is also not of the opinion that an average user of the defendant's portal would not be able to benefit from the decision of the Federal Court of Justice of 20.2.2018 is so well known and present to an average user of the defendant's portal from the press that he will now search every centimetre of the pages called up for mouse-over texts when using this portal or, even without such hidden clues, will assume a differentiated treatment of basic customers on the one hand and premium customers on the other.
(3) However, the aforementioned design of the portal does not lead to a claim for injunctive relief on the part of the plaintiff, at least in the case under dispute, because the inclusion of the link "Matching articles from doctors and medical practitioners", which is the subject of the dispute, does not create a "hidden advantage".
As can be seen from the screenshot submitted by the applicant with the application (page 8), the two medical articles referred to in his profile by the link in question come from a dentist practising in F. Thus, in so far as the use as an advertising platform is intended to provide a hidden advantage in such a way that the defendant diverts the users of its platform from the basic customers to the premium customers, this cannot at least be achieved by means of articles such as those in dispute here, which, although they are technically appropriate to the field of activity of the basic customer concerned, do not come from a doctor who could (still) be described as a potential competitor on account of his local proximity to the place of practice of the person concerned.
In this context, the Senate explicitly does not ignore the fact that potential patients are quite willing to accept longer distances for travel to the doctor of their choice, depending on the respective field of specialisation and/or the respective disease. However, in the present case, the distance between the plaintiff practising in E and the premium customer practising in F, which is just under 450 km away, must be regarded as too great to assume a significant competitive relationship with regard to dental care. As far as the list of the professional articles proven on the profile of the plaintiff may be subject to a constant change - as the attorney of the plaintiff asserted this in the hearing before the senate - and therefore also the risk could exist that in the future professional articles of local and/or at least in the closer environment practicing competitors of the plaintiff would be proven on its profile, this is not sufficient for the sufficient demonstration of a first ascent danger.
dd. With regard to the request under 2 d), the defendant's appeal is only partially well-founded. Because the plaintiff is only partially entitled to a claim for injunctive relief with regard to the fact that his profile refers to a list of doctors for special treatment areas, whereas this is not the case with premium customers, namely with regard to his own field of activity.
(1) At the end of the page on the plaintiff's profile, under the heading "Suitable treatment areas and encyclopaedia contents Doctors for special treatment areas", there is a hyperlinked list of various medical measures, some of which have no contact with the plaintiff's specialty (e.g. "breast augmentation" and "hair transplantation"), while others cover the same (e.g. "dental prostheses, dental implants, root canal treatment"). When such a hyperlink is called up, a list of doctors in the relevant specialty is displayed under the heading "There are 14 dentists for dental prostheses in E".
(2) The defendant must partially omit this presentation. Insofar as the link attacked by the plaintiff ("Suitable treatment areas and encyclopaedia contents Doctors for special treatment areas") refers to doctors in the same specialist area, the defendant also uses basic customers such as the plaintiff as an advertising platform here and grants premium customers a "hidden advantage" in the sense of the case law of the Federal Court of Justice, whereby the interests of the defendant must withdraw within the framework of the weighing of interests pursuant to Art. 6 para. 1 f) DSGVO. However, to the extent that the link refers to physicians in other specialties ("breast augmentation", "hair transplantation"), there is no corresponding advantage granted to paying customers of the defendant.
(a) The profile of the basic customer is initially used as an advertising platform by the attacked presentation, in that - although somewhat hidden at the end of the page, which can only be reached by scrolling down, but still optically well perceptible - medical terms are listed on it, which at least partially interest a user in search of a dentist (e.g. "dental prosthesis, dental implants, root canal treatment") and possibly also encourage him to click on. The list, which can be verified by such a click, will then show local and other competitors of the basic customer.
(b) On the other hand, the corresponding heading at the bottom of the page is not to be found on the profiles of premium customers, so that the potential patient on these profiles is not even given the idea of searching for other doctors in the same treatment area who - as the link used by the defendant linguistically suggests - are particularly qualified for the "special treatment area" and are accordingly proven on the list then reached. While the user on the profile of a basic customer can thus get the impression through the existing hyperlink that the doctor listed there may not be sufficiently qualified because his page still refers to other colleagues for the "special" medical field, the Defendant does not make any such reference on the profiles of premium customers which could encourage patients to continue the search for a doctor who is as qualified as possible and which could therefore show potentially competition-relevant consequences.
(c) The advantage associated with this is also granted "covertly" to premium customers by the defendant, because it is not clear from the presentation on the various profiles why in one case the user is offered a referral to supposed experts for a certain specialist area and not in the other. In this context, it is irrelevant that the list obtained by clicking on the "special treatment areas" link represents both paying and non-paying physicians and thus the user is not redirected to a list of premium customers alone. Rather, the decisive factor is that there is no such redirection according to special treatment areas, at least not on the profile of premium customers, and that there is therefore no risk with this group that patients will be redirected to another doctor in the possibly awakened mistaken idea that the doctor is not sufficiently specialised and is only a solid "craftsman" for general cases.
(d) However, the applicant's application for an injunction is unfounded in so far as it attacks the presentation under the heading 'Suitable treatment areas and encyclopaedia content doctors for special treatment areas' in its entirety. For as far as the list, which is designed as hyperlinks, concerns medical measures which have no contact whatsoever with the plaintiff's specialty (e.g. "breast enlargement" and "hair transplantation"), the plaintiff is not used as an advertising platform in view of the redirection of users from basic customers to premium customers, which is basically intended by the defendant. From the point of view of the Senate, it is far-fetched that the potential patient of a dentist is redirected to the site of a dental competitor by means of the proof of special doctors for breast augmentation or hair transplants which can be obtained via the dentist's profile.
ee. With regard to the application under 2 e), the defendant's appeal is well-founded. For the plaintiff is not entitled to injunctive relief inasmuch as his profile refers to a list of physicians for special treatment areas, on which other physicians are particularly emphasized against payment.
(1) Via the link ("Doctors for Special Treatment Areas") already challenged in the application under 2 d), the user can access a list of doctors in the relevant specialties who practice at different geographical distances from the plaintiff. According to the screenshot submitted by the plaintiff (see p. 13), the list contains mainly basic customers, but in the first line - in the background in a different colour and marked with the term "advertisement" in the upper right corner - two premium customers are listed who do not practice in the vicinity of the plaintiff but in Cologne or Alsdorf. In a text appearing by means of a mouse-over function above the term "advertisement", it is pointed out that this placement at the top of the list is not related to the ratings of the doctor in question, but is part of the platinum package for which a fee is charged. For physicians interested in this "exclusive placement", the defendant has provided a telephone number there for possible contact.
(2) The aforementioned content of the list linked to the plaintiff's profile - and in view of this linking already covered by the application under 2 d) - does not trigger any claim for injunctive relief on the part of the plaintiff.
(a) It is true that there is an unequal treatment of paying and non-paying physicians in the presentation objected to by the plaintiff, which reserves the particularly attractive upper place for those customers of the defendant who have booked a platinum package. In the view of the Senate, it is also quite striking that the basic customers are used as an advertising platform to the extent that the defendant potentially redirects its users to the platinum customers in the first line through the clearly advantageous visual representation and the basic customers in the other area of the list with their simple silhouettes are again only given the task of "filler" or jump-off platform.
(b) However, in the present case, this does not lead to the granting of a 'hidden advantage' to platinum customers. For the average recipient of the Defendant's platform, it is sufficiently clear, both from the different colour design of the background and from the word "advertisement" in the upper right-hand corner, that the positioning of the doctors concerned at the top of the list makes no statement whatsoever about their professional qualifications or evaluations by patients or about their personal commitment in their external presentation, but that they occupy this position solely for the reason that they have paid the Defendant accordingly and have placed an "advertisement". It is also not important that the corresponding information is contained on the page in the form of a mouse-over text, as such a merely indirect reference, as explained above, would not be sufficient for proper information of the recipient. The Senate assumes, however, that it is precisely the design in the form of a background in a contrasting colour combined with the word "advertisement", which has already been familiar to the target public for many years from advertising in the print sector, that makes its advertising character so openly apparent that it cannot remain hidden from the average recipient.
(c) Whether the above assessment would be different if the defendant had designed the advertising bar in a larger format and the user could not easily "advance" to the actual results list, which also contains basic customers, due to a presentation that would then fill the page, does not require a decision even after the application has been filed; however, nothing has been presented or is otherwise apparent.
(d) As a control consideration, with regard to the advertising emphasis which is the subject of the dispute here, it must be considered that even in a book with restaurant evaluations and/or evaluation lists on certain topics, which "compulsorily" covers all restaurants in a city, there would be no objection if - clearly recognizable - advertisements were placed by individual evaluated restaurants on the margins of the lists; the Senate is not able to see why this should be different on the profile of the defendant.
The defendant's appeal is also well-founded inasmuch as the plaintiff objects, with the motion under 2 f), to the fact that his profile refers to a list of physicians for special treatment areas, on which other physicians are particularly emphasized for a fee.
(1) With this motion, the plaintiff attacks the list - as evidenced by the link challenged in the motion under 2 d) - to the effect that basic and premium customers are represented differently by the fact that the latter, unlike basic customers, are not shown on this list with a grey silhouette but with a photo. According to the screenshot provided by the plaintiff (p. 15), paying physicians are presented on the list proven by link on a colour-contrasting background under the heading "Dentists (with picture) in the vicinity" with a photo, whereby the colour-contrasting background again contains the word "advertisement" in the upper right corner.
(2) However, in accordance with the above comments on the application under 2 e), this is a permissible representation by which the defendant does not abandon its role as "neutral information mediator". Because due to the design with a background in contrasting colours and the word "advertisement", which is familiar to the average user, the advertising character is clearly recognisable, so that it is not possible to speak of the granting of a "hidden advantage".
The defendant's appeal is also well-founded to the extent that the plaintiff objects in its motion under 2 g) to the fact that advertising for third-party companies is displayed on its profile, while such advertising is omitted on the profiles of premium customers.
(1) On the screenshots submitted by the plaintiff (p. 16 et seq.), when his profile is called up, there is advertising for tour operators (G or H) initially in the title line and in the right-hand margin. If you then scroll down to the area above the plaintiff's ratings by his patients, you will find an advertisement for a car brand (I) in the middle of the profile. The profile of a premium customer does not contain such advertisements, as the screenshots submitted by the plaintiff show (see page 18).
(2) With regard to this design of the portal, the plaintiff is not entitled to the asserted claim for injunctive relief because the defendant has not used the basic customers as an advertising platform to grant premium customers a "hidden advantage" and has thus not abandoned its role as a "neutral information intermediary" with regard to its business model, which is basically approved by the legal system and desired under company law.
The prerequisite that the basic customers are used by the defendant as an advertising platform for the premium customers is already missing here. This is because such use for advertising purposes is not for local or professional competitors of the plaintiff, but for completely different industries.
Even if, for the benefit of the plaintiff, it is taken into account that the profile of a premium customer possibly makes a more serious impression or appears to be of higher quality from the point of view of the average user due to the lack of advertising for third-party companies, this alone does not constitute the granting of a "hidden advantage" by the defendant. The Senate is convinced that the average user of the Internet in general and of a rating platform in particular is so familiar with the display of advertising above, next to and below the page content that is actually of interest that such advertising does not create an impression that in any way contains any information about the technical competence or the existence of local or technical competition of the basic customer. Rather, no further significance is attached to such advertisements with regard to the content of the specific website than that of a mere annoyance factor. It is also not apparent what false impression with a possibly competition-relevant effect the Internet users are supposed to gain in the relationship between basic customers and premium customers of the defendant.
hh. The defendant's appeal is also successful to the extent that the plaintiff objects, in its motion to 2 h), to the defendant granting premium customers the opportunity to indicate offered services to a greater extent than he has done
(1) On the page of a premium customer, there is a list of job-related activities (e.g. "Implants, prophylaxis, tooth preservation, gum treatment" etc.) under the heading "Overview of services" after the contact data. In the plaintiff's basic profile (see p. 21), the text "No Dr. J services yet deposited" is found in the corresponding place under the heading "Overview of services". Are you Dr. J? Enter your benefits overview now". The last sentence of this text is designed as a hyperlink leading to the login for registered customers of the defendant. According to the - in this respect not disputed - presentation of the plaintiff, basic customers can also make entries under this heading. For this purpose, however, they must first register with the defendant (free of charge).
(2) This design of the defendant's portal does not entail any right of injunction for the plaintiff. In this respect, the defendant did not use the basic customers as an advertising platform to grant premium customers a "hidden advantage" and thus did not abandon its role as a "neutral information intermediary" with regard to its business model, which is basically approved by the legal system and desired under company law.
Here, too, the first prerequisite for using the basic customers as an advertising platform for the premium customers is already missing. It is true that paying and non-paying customers are treated differently by the defendant when it comes to the possibility of providing information about their services. However, there is no direct (fade-in of competition) or indirect (existence of a link to the competition) indication on the basic customer's page that there are other customers of the defendant who have made any entries at all or more entries in the relevant category and therefore may appear more competent for the average user. Although the potential patient is informed by the text found on the basic profile ("No services of Dr. J deposited yet. Are you Dr. J? Deposit your service overview now"), the potential patient is theoretically able to access the login portal of the defendant and thus recognize that participating physicians must register in any case in order to provide services. However, this does not give the user the impression that the basic customer in question either does not offer any significant services or is technically unable or not interested in storing them on his profile. The Senate considers the possibility that the average user clicks on the relevant links and informs himself about the requirements for depositing a service overview at the login portal to be remote. Irrespective of this, even such an assessment of the user would not suffice for the assumption of a "hidden advantage", because this impression is not created by the fact that the defendant - without disclosing the reason for the different treatment - guides the user from the profile of a basic customer to the profile of a premium customer or that the different treatment of the two customer groups becomes obvious through a direct juxtaposition - as is the case on a results list.
(3) It has also neither been argued nor is it apparent that the different treatment results in (hidden) advantages in the form that basic customers are at a disadvantage compared to premium customers when they search for services (keywords) (e.g., in the case of percentage charges, etc.).
ii. Furthermore, the defendant's appeal is also well-founded insofar as the plaintiff, in its motion under 2 i), objects to the fact that the defendant, unlike him as a basic customer, allows its premium customers to deposit a portrait picture.
(1) On the profile of a premium customer there is a portrait photo in clothing appropriate to the profession in the upper right-hand part of the page, while on the profile of the plaintiff as a basic customer the photo is replaced by a grey silhouette in which - at least at the time the screenshot was taken by the plaintiff - the text "This doctor has unfortunately not yet deposited a portrait" is written (see p. 24).
(2) With regard to this form, the claimant shall not be entitled to the asserted right to injunctive relief. Because the senate is not able to determine here either that the defendant uses the plaintiff as a basic customer as an advertising platform to grant premium customers a "hidden advantage".
(a) Although it can certainly be assumed that the average user - although he will not normally draw any conclusion about the professional competence of the doctor in question from a presentation without a photograph - could, at least in view of the text in the grey shadow ("Unfortunately, this doctor has not yet deposited a portrait"), gain the impression that basic customers such as the plaintiff are either technically unable to upload a photograph on the site or that they are not interested in a personal presentation on this portal, which the defendant itself has created on the start page of A+*.de as "Germany's largest doctor-patient portal", have no interest or personal reservations about a pictorial presentation. On the other hand, the average user in the profile of a premium customer is not informed by the defendant of the reasons for which the latter was able to post a portrait; all the more so, it is not pointed out that such a picture is part of the premium package for which a fee is charged.
(b) However, the plaintiff as a basic customer is not used as an "advertising platform" for premium customers by this concrete form of the design of his profile - unlike, for example, in the case of list presentation (motion to strike 2 b)) - as would be a prerequisite for the assumption that the defendant had abandoned its role as a "neutral information intermediary". Because in the basic profile in dispute there is no direct (e.g. through advertising) or even indirect (e.g. through a link) indication that local or professional competitors of the plaintiff are presented in a more visually appealing manner on the defendant's portal. Neither on the profile of the plaintiff competitors with picture are faded in nor is on and/or at the grey shade a hyperlink or the like, over which the deplored one would steer to a list with Premiumkunden. Unlike, for example, the separately attacked representation of locally or professionally competing doctors on a list, in which the different treatment is as it were conspicuous, there is no such juxtaposition of his own representation with a "loveless" silhouette and the advantageous representation of a premium customer with photo on the plaintiff's basic profile. Insofar as the user - as explained above - possibly draws an unfavourable conclusion from the text in the grey silhouette ("Unfortunately, this doctor has not yet deposited a portrait") with regard to the technical abilities or the personal commitment of the plaintiff as a basic customer in the acquisition of new patients and could thus gain a false impression, this form of a possible encroachment on the (entrepreneurial) right of personality is not attacked by the present action, which is directed against unequal treatment of basic customers in relation to premium customers, and is therefore not the subject of examination in the appeal proceedings (§ 308 Paragraph 1 ZPO).
sb. The defendant's appeal is also well-founded with regard to the motion under 2 j), with which the plaintiff objects to the fact that the defendant grants premium customers, unlike basic customers such as him, the opportunity to present individual content and images on their profile
(1) On the profile of a premium customer, there is a section entitled "Further information about me" below the evaluation overview, in which the premium customer's own texts can be entered, with which his person, his treatment focus, his range of services, his special features as well as his practice are described in more detail or other information for potential patients is left (see pp. 26 ff.). On the other hand, at the corresponding point in the plaintiff's basic profile under the heading "Further information about Dr. J", the text "At this point, doctors can introduce themselves personally to patients by presenting, for example, their curriculum vitae, treatment focuses and the entire range of services offered by their practice. Are you Dr. J? Complete your profile now and give new patients an impression of you and your practice". This text is followed in blue font by the sentence "Complete your profile now", which is designed as a hyperlink and links to an information page of the defendant on the advantages of their premium packages (pg. 28). In the version of the plaintiff's profile which was current at the time of the oral proceedings - it is disputed between the parties whether this was already the case at the time of the filing of the action - the reference "Are you Dr. J? Book an A Premium Package now to be able to use these and many other functions".
(2) Even this design of the platform does not trigger any injunctive relief on the part of the plaintiff. There is already a lack of use of the basic customers as an advertising platform for premium customers, because the different design of the profiles with regard to the possibility of setting individual contents and pictures on the profile can only be recognised by the average user if he calls up different profiles of his own accord. On the other hand, there is no direct or even indirect indication in the plaintiff's basic profile in dispute that local and/or professional competitors of the plaintiff can design their profile on the defendant's portal in a much more comprehensive manner. Differently than for example with the representation of locally and technically competing physicians on a list also no side by side of its own representation and the representation of a Premiumkunden, which presents further individual contents and/or pictures of its practice, is on the basis profile of the plaintiff also no. In this respect, it is also not decisive whether the mouse-over text mentioned above ("Are you Dr. J? Book an A Premium Package now to be able to use these and many other functions") would make it sufficiently clear to the average user that it is merely an additional function with advertising character that requires payment - which is doubtful.
OK. The defendant's appeal is further substantiated insofar as the plaintiff objects with the motion to 2 k) that the defendant grants premium customers, in contrast to basic customers such as him, the possibility of indicating and linking the address of their own homepage in their profile.
(1) On the profile of a premium customer, the first page of the contact data under the heading "Homepage" contains information on the customer's own Internet address (see page 30). On the other hand, the plaintiff's profile as a basic customer (see p. 31) contains the text "Homepage: not yet deposited", which is provided by the defendant, whereby this text is again equipped with a mouse-over text ("Are you Dr. J? Book an A Premium Package now to be able to use these and many other functions").
(2) Also with regard to this different treatment of basic and premium customers, the plaintiff is not entitled to injunctive relief. Because even if the defendant treats its paying and non-paying customers differently in this respect, the basic customers are not used as an advertising platform to grant the premium customers a "hidden advantage". In accordance with the comments on the applications under 2 i) and 2 j), there is neither a situation here in which the defendant attempts to lure users from the basic customers to the premium customers through the concrete design of the basic profile by means of insertions or links, nor is the different design of their profiles and a related ("hidden") advantage for the premium customer, which was not disclosed to the user by the defendant, justified by the direct coexistence of the basic customers and the premium customers. The fact that a homepage is of great importance in today's economic life and that Internet users must first search ("google") for the homepage of basic customers themselves does not in itself support the assumption of a "hidden advantage".
ll. The defendant's appeal is also successful to the extent that the appeal is directed against the motion on 2 l), in which the plaintiff attacks the fact that premium customers, unlike basic customers like him, are given the opportunity to publish professional articles on their profile.
(1) On the profile of premium customers, medical articles by the respective physician can be found below the portrait photo and their own pictures on the right-hand side under the heading "My Articles", whereby it is disputed between the parties whether these are actually written by the respective premium customer himself (see p. 33). On the profile of the plaintiff as a basic customer, at this point of the profile under the heading "Articles by Dr. J" the text "Are you Dr. J? Write article now". The second part of the text leads as a hyperlink again to a page on which the defendant presents the advantages of its premium packages. Also available again is the mouse-over text "Are you Dr. J? Book an A Premium Package now to be able to use these and many other functions" (see page 34).
(2) In accordance with the above statements on the applications under 2 i) to 2 k), the plaintiff is not entitled to injunctive relief here either. The Senate does not fail to recognize in this context that the text used by the defendant "Are you Dr. J? Jetzt Artikel verfassen" used by the defendant may well create a negative impression on the user, because a basic customer such as the plaintiff, from the perspective of a potential patient, does not seem to be willing and/or able to write his own specialist articles and post them on his profile. However, such an impression is not the subject of the claim asserted in the lawsuit, which is based on the fact that the defendant has left its position as a "neutral information intermediary" by using the basic customers as an advertising platform and granting "hidden advantages". In this respect, however, the plaintiff is not used as an advertising platform for premium customers by directly displaying references to the premium customers, nor by forwarding them to their profiles, nor by directly juxtaposing them with each other, thereby granting them a "hidden advantage" by the defendant.
mm. The defendant's appeal is also well-founded to the extent that the plaintiff objects, with the motion on 2 m), that premium customers, unlike basic customers like him, are granted the opportunity to post a video on their profile. In accordance with the above statements, the plaintiff is not entitled to injunctive relief in this respect.
nn. The defendant's appeal is also well-founded to the extent that the plaintiff objects with the motion to 2 n) that premium customers, unlike basic customers like him, are given the opportunity to be interviewed by the defendant and to post the interview on the profile. In accordance with the above statements, the plaintiff is not entitled to injunctive relief in this respect.
oo. With its appeal, the defendant is also able to penetrate the issue insofar as the plaintiff objects with the application under 2 o) that premium customers, unlike basic customers such as him, are granted the opportunity to query individual evaluation criteria on their profile.
In this respect, too, the plaintiff has no right to injunctive relief. With regard to the presentation of the personal data challenged by this motion, the lack of use of the basic customer as an advertising platform and a resulting "hidden advantage" for the premium customers already results from the fact that the different treatment of basic and premium customers practiced by the defendant here is not even perceptible to the user of the portal. With his application, the plaintiff has neither submitted a screenshot of the profile of a premium customer, from which it could be seen in what way such a query of individual evaluation criteria appears in the premium profile, nor has he provided information - especially not in a substantiated form - on how these evaluation criteria affect the presentation on the defendant's portal. The printout submitted by him from the table of contents of the various packages offered by the defendant (see p. 41) rather makes it clear that this is an opportunity for premium customers offered internally by the defendant, which does not necessarily have to come to the attention of the user at all.
It has not been demonstrated and/or demonstrated that the choice of individual evaluation criteria - which would be inadmissible as a hidden advantage - would, for example, influence the (overall) evaluation score of premium customers and thus their position in the "rankings" and would thus possibly give them an advantage over basic customers.
pp. The defendant's appeal is further well-founded to the extent that the plaintiff objects with the motion to 2 p) that premium customers, unlike basic customers such as him, are granted the opportunity to have their profile created and maintained by the defendant. In accordance with the comments on Motion 2 o), the plaintiff is not entitled to injunctive relief in this respect either. Whether and to what extent the defendant supports its premium customers in the creation and maintenance of their profile is a purely internal process without external effect, which is not or cannot be taken note of by a user and for this reason alone cannot give the potential patient the impression, which can be considered a "hidden advantage", that the premium customer has greater technical or other skills than the basic customer.
qq. The defendant's appeal is also logically well-founded in so far as the plaintiff, in its motion to 2 q), objects to the fact that premium customers, unlike basic customers such as him, are given the opportunity to use the services of professional copywriters on their profile. According to the comments on the motion 2 o) and 2 p), the plaintiff also lacks a right to injunctive relief in this respect.
rr. The defendant's appeal is also successful to the extent that the plaintiff, in its motion to 2 r), objects to the fact that premium customers, unlike basic customers such as him, are given the opportunity to publish articles on the "Expert Advisor" subpage. In this respect, too, the plaintiff lacks a right to injunctive relief, although reference can ultimately also be made here to the comments on motion 2 o) or 2 p). The screenshot presented by the plaintiff (p. 45) does not show how the user gets to the page with this expert guide, in particular whether this is done based on the profile of the premium customer or by a link on the page of the basic customer.
ss. The defendant's appeal is also well-founded in so far as the plaintiff objects with the motion to 2 s) that premium customers, unlike basic customers like him, are given the opportunity to be interviewed by the defendant and to publish the interview on the "Expert Advisor" subpage. In this respect, too, the plaintiff lacks a right to injunctive relief, whereby reference is made to the comments on the motion 2 o) and 2 r) The plaintiff also fails to explain how the user can get to the "Expert Advisor" page at all.
dd. The defendant's appeal is further well-founded in so far as the plaintiff objects with the motion on 2 t) that premium customers, unlike basic customers such as him, are given the opportunity to be presented more conspicuously in search queries on special subject areas.
(1) According to the screenshots submitted by the plaintiff (sheets 48, 49), premium customers have the option of being displayed "in an advertisement space above the results list" when searching for search queries on special subject areas. In this case, the premium customer appears on a blue-shaded field, which is underlaid in gold lettering at the top left, marked "Advertisement" and which is listed in the first place of the results list, irrespective of the distance of his practice from that of the plaintiff and the result of his evaluations - neither of these circumstances are indicated in the display.
(2) In this respect, too, the claimant is not entitled to the asserted right to injunctive relief. Admittedly, the average user may, on superficial examination of the list, initially get the impression that the above-mentioned physician best matches his previously entered search criteria ("relevance", "distance", "grade" or "number of ratings"). However, the so-called top placement of the list is clearly recognisable as a payable service by a colour-contrasting background as well as the term "advertising" in the upper left corner, which is again marked in a different colour, and which will not cause a potential patient to have any misconceptions as to whether the physician at the top of the list is listed there with regard to professional or other qualifications. Reference is made to the comments on the application under 2 g).
Insofar as, according to the defendant's package description, gold and platinum customers are also offered, in addition to the so-called top placement challenged here, "to be even better highlighted on the profiles of other doctors" (see p. 48), this may possibly include the granting of a "hidden advantage" by the defendant at the expense of the "other doctors" then used as an advertising platform. However, this form of structuring the basic customer profile has not been challenged by the plaintiff (§ 308, Subsection 1, ZPO), nor has it submitted in what way this offer by the defendant to its premium customers is actually implemented on the profile of the basic customers, so that the Senate is not in a position to review the granting of a "hidden advantage" in this respect due to the lack of corresponding actual findings.
oo. The defendant's appeal is also well-founded to the extent that the plaintiff objects in the motion under 2 u) that premium customers, unlike basic customers such as him, are given the opportunity to be displayed more conspicuously in search queries for special search terms.
According to the screenshots submitted by the plaintiff, the defendant offers its premium customers the option of being displayed above the results list when up to five search terms of a potential patient - previously defined by the customer - are entered (see page 50). The corresponding display of the premium customer takes place in a field highlighted in color and marked with the term "Display" in the upper right corner (see pg. 51). However, the plaintiff is not entitled to the injunctive relief asserted in this regard either. Reference can be made to the comments on the application regarding 2 t).
vv. The Defendant's appeal is well-founded inasmuch as the Plaintiff, in its motion under 2 v), objects to the fact that premium customers are displayed differently from basic customers such as those displayed on the A homepage.
According to the screenshots submitted by the plaintiff, the defendant offers its premium customers the option of having their profile entry appear "regularly" on the A homepage so that "they can be seen and contacted by even more patients" (p. 52). The corresponding display of the premium customer is made on the Defendant's home page under the heading "Ratings from patients", whereby the photo and name of the premium customer in question are displayed along with an approximately three-line excerpt from a rating given to him (p. 53).
This presentation on the evaluation portal of the defendant does not constitute a "hidden advantage" in the sense of the case law of the Federal Court of Justice, so that the plaintiff is not entitled to injunctive relief in this respect. It is the start page of the rating platform, which is displayed to the user before he has even started the search for a doctor. In this respect, the user is not made aware on the profile of a basic customer or in connection with the presentation of such a customer of which local and/or professional competitors there are that are already visually presented on the homepage. The plaintiff himself does not claim that the premium customers in question are selected on the homepage according to professional or other competencies. Furthermore, it is also not apparent that the disputed presentation on the front page could cause any kind of misconception on the part of the user, especially since the advertisement is already made at a time when the user has not specified his criteria for a search for a suitable doctor in more detail either by stating a specialty or by specifying a location. For this reason alone, it is clear to the average user that the physicians displayed on the homepage occupy this position without regard to their professional qualifications, the result of their evaluations or their geographical proximity to the user.
ww. Furthermore, the defendant's appeal is also well-founded insofar as the plaintiff objects with the motion to 2 w) that premium customers, unlike basic customers such as himself, are provided with a personal contact person in the defendant's company.
The plaintiff also lacks a right to injunctive relief in this regard. As the screenshot presented by him (p. 54) shows, this offer of the defendant - which, contrary to the statements in the statement of claim, is not directed at all paying customers, but solely at platinum customers - is a pure Internum in the business operations of the defendant ("We are personally available to you for your questions and requests under a free platinum customer hotline and give you tips on patient acquisition"), from which the user is not informed either in the context of his search for a doctor or during other visits on the profiles of basic or profiles of basic or premium customers, neither in the course of his search for a doctor nor during other visits. In this respect, it can also not be established that the Defendant, by treating Platinum and other customers differently, creates the risk of a misconception on the part of the User, which could lead to a "hidden advantage" for Platinum customers.
xx. Consequently, the defendant's appeal is ultimately also well-founded inasmuch as the plaintiff, with the application for 2 x), objects to the fact that premium customers, unlike basic customers such as himself, are given the opportunity to contact the defendant via a free hotline. In accordance with the comments on the motion on 2 w), the plaintiff also lacks a right to injunctive relief here.
2. the plaintiff may request the deletion of the data concerning him in accordance with Article 17(1)(d) DPA, since these data were processed unlawfully by the defendant and do not preclude the exercise of the right to freedom of expression and information in accordance with Article 17(3)(a) DPA
a. The action is admissible. In particular, according to the case-law of the Federal Court of Justice (BGH, judgment of 23 June 2009 - VI ZR 196/08, MMR 2009, 608), the legal protection of such an application cannot be denied from the outset, because otherwise a future failure to publish data could also be achieved by simply blocking access and the requested deletion would continue in this respect. The fact that - as is to be explained immediately under d) - after deletion and correction of the error leading to deletion, a new profile can be created again with the same data without violating the title and thus the basis for the deletion claim is ultimately withdrawn again (therefore speaking of "Phyrrussieg" Franz, GRUR 2018, 640, 641) does not support any other view.
b. The defendant is legitimized as "responsible party" within the meaning of Art. 4 No. 7 DSGVO for the claim for cancellation asserted by the plaintiff, as it is a legal entity which is informed about the purposes and means of processing personal data of the plaintiff within the meaning of Art. 4 No. 7 DSGVO. 1 DSGVO (name, specialisation, address and telephone number of the practice as well as the ratings given about the plaintiff), whereby the processing within the meaning of Art. 4 No. 2 DSGVO takes place in the form of the collection and storage of the data, its organisation as well as the use or disclosure by transmission to the querying users.
c. As already explained above, the defendant cannot rely on the media privilege pursuant to Art. 85 para. 2 DSGVO in conjunction with the claim for cancellation. Art. 38 BayDSG, because there is no "processing for journalistic purposes" with regard to the aforementioned data.
d. In the present case, the processing of the plaintiff's personal data by the defendant is unlawful within the meaning of Article 17(1)(d) DPA. As already explained in the context of the injunction, the interests of the plaintiff, with regard to the form of presentation of the data on the defendant's platform objected to by the applications under 2a), 2b) and partly with regard to the form of presentation of the data on the defendant's platform objected to by the application under 2d), deserve priority over the legitimate interests of both the defendant and the users and evaluating patients. Insofar as the plaintiff complains about a large number of presentations on the defendant's platform within the scope of the claim for injunctive relief, but which - as described above - do not all trigger a claim for injunctive relief, this is irrelevant within the scope of the deletion asserted with the motion under 1). Because such a deletion, which is only aimed at the actual state of the defendant's website or the data records held on it, is already justified if the presentation objected to by the plaintiff does not correspond in a single point to the specifications which the basic data protection regulation sets up for the protection of his interests. However, the defendant is not prevented by the presently tenorated deletion requirement, which the senate has already pointed out above to a. and also during the discussion of the matter in the oral hearing, from taking the personal data such as name, specialisation, practice telephone number of the plaintiff again from publicly accessible sources such as the plaintiff's own Internet presence after appropriate deletion and from integrating them again into its platform if it has eliminated the "errors" in the presentation of the platform objected to by the senate.
If there are doubts as to whether the claim for cancellation can still be based on the infringements pursued with the motions under 2a) and 2b), because in this respect it is undisputed that the presentation of the platform has meanwhile been changed and the legal situation at the time of the last oral hearing must be taken into account for the claim for cancellation (such as Leutheusser-Schnarrenberger, in: Schwartmann et al, DSGVO/BDSG, 2018, Art. 17 marginal no. 28), this may not be necessary because the plaintiff can in any event rely on the established (partial) infringement of Motion 2 d) and according to the above, only this alone gave rise to the claim.
e. Insofar as the defendant invokes Art. 17 para. 3 lit. a) DSGVO, this does not preclude the claim for cancellation. This is because data processing is not "necessary" for the "exercise of the right to freedom of expression and information" if - as shown in the cases mentioned - the weighing of interests within the framework of Art. 6 para. 1 f) DSGVO is precisely at the expense of the defendant. In this respect, the provision only repeats the standard for weighing the interests of the parties and does not set any further hurdles of its own (as is also applicable in the parallel case of LG Wuppertal, Urt. v. 29.3.2019 - 17 O 178/18, BeckRS 2019, 13062 marginal no. 97).
f. In this context, the Defendant also cannot assert that the Plaintiff should have filed an objection under Art. 21 DSGVO as a matter of priority. For, as the system of Article 17.1 c) and d) DSGVO shows, the possibility of objection does not have priority, but - especially since it is all the more permissible even in the case of initially unlawful processing (Atzert, in: Schwartmann et al., DSGVO/BDSG, 2018, Article 21 marginal no. 18) - comes into play alongside the claim for cancellation due to unlawful data processing. Art. 17 para. 1 d) DSGVO is thus a catch-all offence (instead of all Leutheusser-Schnarrenberger, in: Schwartmann et al., DSGVO/BDSG, 2018, Art. 17 marginal no. 27).
3. the plaintiff is entitled to an indemnity for extrajudicial lawyer's fees in the amount of 337.07 euros. This corresponds to the claimed 0.65 business fee from the value of the justified claims for cancellation and injunctive relief (7,000 euros). Deviating from the assessment of the value by the Regional Court, the Senate assessed both the plaintiff's claim for cancellation and the individual claims for injunctive relief at EUR 2,000 each within the total amount in dispute of EUR 50,000, which was considered appropriate. The relatively low valuation of the application for cancellation is based on the consideration that the plaintiff cannot sustainably achieve his actual goal - to be permanently unlisted on the platform of the defendant - with the claim for cancellation for the reasons stated under no. 2, because the defendant is not prevented by an obligation to delete the data from immediately thereafter collecting the data again from publicly accessible sources and using them in its database. The economic significance of this claim is therefore correctly to be regarded as minimal, both for the plaintiff and for the defendant, who only has to arrange for deletion from the database internally. With regard to the claim for injunctive relief, on the other hand, a higher economic significance is to be assumed, since the plaintiff with the respective attacked forms of design ultimately wants to influence the presentation on the defendant's portal and no longer wants his data to be disseminated there in the form of a "compulsory listing" which he perceives in this way, since this takes place from his point of view in the form of unequal treatment compared to premium customers. Since this unequal treatment, which is criticised by the plaintiff as a whole, is specified and broken down in many respects, the Senate considers an individual value of EUR 2,000 for each of the applications for injunctive relief to be appropriate.
4. the procedural ancillary decisions are based on section 92(1) sentence 1 of the Code of Civil Procedure with regard to costs and on section 709 sentences 1 and 2 of the Code of Civil Procedure with regard to provisional enforceability.
5. The appeal was to be admitted under § 543 (2) ZPO because the case is of fundamental importance and because the further development of the law or the securing of uniform jurisdiction requires a decision by the Federal Court of Justice. The question under which conditions the operator of an evaluation platform may process personal data of a data subject and in which cases the operator may abandon its role as a "neutral information intermediary" has not yet been fully clarified in the case law of the highest courts, as the decision of the Federal Court of Justice of 20 February 2018 (VI ZR 30/17) only refers to an individual case of the design of the defendant's evaluation platform. In view of the extensive business activities of the defendant and the significance of its platform, it is certainly to be expected that the questions raised in the present lawsuit regarding the permissible design of the profiles of basic and premium customers will be of significance for a large number of future proceedings.
Amount in dispute: 50.000 Euro
