OLG Köln - 15 U 89/19
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| OLG Köln - 15 U 89/19 | |
|---|---|
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| Court: | OLG Köln (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 17(3) GDPR |
| Decided: | 14.11.2019 |
| Published: | |
| Parties: | Anonymous |
| National Case Number/Name: | 15 U 89/19 |
| European Case Law Identifier: | ECLI:DE:OLGK:2019:1114.15U89.19.00 |
| Appeal from: | LG Bonn (Germany) |
| Appeal to: | |
| Original Language(s): | German |
| Original Source: | Justiz NRW (in German) |
| Initial Contributor: | n/a |
The Higher Regional Court of Cologne (Oberlandesgericht Köln) ruled on the exception to the “right to erasure” under Article 17(3) GDPR.
English Summary
Facts
Two doctors sued a platform for deletion of their basic profile set up on the platform without their consent under Article 17 GDPR. They argued that due to the functions of the site, non-paying doctors (basic customers) were used on the site as an advertising platform for paying doctors (premium customers) in an inadmissible manner, partly due to functions hidden from regular users.
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 126/19.
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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, a specialist dentist for periodontology, demands from the defendant, which operates the most frequently used evaluation portal for doctors in Germany with over 6 million users per month, with reference to Art. 17 para. 1 lit. d, 6 para. 1 lit. f DSGVO, deletion of the data stored in the portal about the plaintiff without the latter's consent, as well as omission of the publication of its data in connection with a deviating treatment of paying customers of the defendant or services provided to them in various positions described in more detail in the motions for action. The plaintiff asserts that the defendant, contrary to its public self-portrayal, is abandoning the socially desirable position of being a "neutral information intermediary" in order to increase transparency in the health care system and is also failing to comply with the decision of the Federal Court of Justice in the judgment of the Federal Court of Justice (Bundesgerichtshof) in the case of the German Federal Court of Justice (Bundesgerichtshof im Urt. v. 20.02.2018 - VI ZR 30/17, GRUR 2018, 636. The business policy of the defendant was solely aimed at getting as many of the physicians "compulsorily registered" in the portal as possible, in the plaintiff's view, to pay high monthly fees for an improved presentation of their own profiles and thus at the same time to (further) increase the pressure on the (as yet) non-paying physicians to also make use of the paid services of the defendant so that they would not continue to be used as a "negative anchor" for advertising their paying competitors. The plaintiff has divided the advantages of paying premium customers, which the plaintiff considers inadmissible, into four groups compared to a so-called basic profile of non-paying customers:
- "Group 1": Use of non-paying physician profiles in various forms as "advertising space" for competing paying physicians and third party contractors, whereas paying physician profiles are not subject to such advertising (proposals (a) - (g));
- "Group 2": possibilities for paying physicians to "upgrade their own profile" for positive withdrawal from non-paying physicians (applications h) - q));
- "Group 3." Opportunities for paying physicians to present themselves more advantageously than non-paying physicians even outside their own profile (applications r) - v)) and
- "Group 4": improved means of contacting the defendant for paying doctors (applications w) - x)).
With regard to the further details of the facts of the case and the state of the dispute and the motions of fact at first instance - most recently adjusted to the notice of the Regional Court in the deadline of 8 February 2019 - reference is made to the facts of the challenged decision (pp. 251 et seq. of the German version).
In its ruling of March 29, 2019, the Regional Court ordered the defendant to delete all data stored in the database of the website www.A+*.de relating to the plaintiff - name, specialisation, address and telephone number of the practice and the ratings given on the plaintiff - and to refrain from using or making publicly accessible any data of the plaintiff on its website www.A+*.de, while avoiding regulatory measures. It also ordered the defendant to release the plaintiff from the costs of extrajudicial legal proceedings in the amount of EUR 923.38. The regional court has a claim for cancellation and injunction of the plaintiff according to § 823 para. 2, 1004 BGB analogously in connection with Art. 2 para. 1, Art. 1 para. 1 GG, Art. 17 para. 1 lit. d) DSGVO, because her personal data is stored according to Art. 6 para. 1 lit. f. DSGVO had been unlawfully processed. If the conflicting interests were properly weighed up - following the principles recognised by the Federal Court of Justice in the old version of § 29 BDSG - the legitimate interests of the defendant would take second place to the protection of the plaintiff, since the manner of publication, the layout of the profile and the information contained therein were suitable for granting "hidden advantages" to paying customers with a platinum or gold tariff, in contrast to the plaintiff who did not pay, without this being recognisable to an average recipient. The defendant had (at least in the meantime) abandoned its socially desirable position as a "neutral information broker" between portal users and doctors. Hidden advantages would be present if the defendant did not limit itself to publishing basic data of the individual physician together with grades and free text comments on its rating portal, but used data of the physicians stored against its will as an advertising platform for the paying competitors, or advertised "services" to the disadvantage of the physicians with a basic profile in such a way that they would be persuaded to join the group of paying physicians in order not to be further disadvantaged by a less advantageous presentation and advertisements. In addition, it would constitute a "hidden advantage" if measures taken by the defendant on the profiles without sufficient disclosure served to steer potential patients more towards premium customers. In this case, the plaintiff's profile is used as advertising space for competing paying physicians, without differences between paying and non-paying customers being identified for the average platform user. By linking suitable specialist articles of paying physicians, the user automatically reaches specialist articles of the premium customer, which is suitable to lure the user from the unloving and simply designed basic profile of the plaintiff into the - from a user's point of view - much more informative premium profile of paying physicians. Insofar as the defendant objects that this is only factual information on a specialist topic, it should be pointed out that this information is not provided on profiles of "platinum customers". There is also no indication that the user can access the premium profile of a paying customer by taking a step, which is a hidden preference of the paying premium customers. In addition, the text "Are you Dr. B?" appears on the basic profile in the place where professional articles could be published, addressing the plaintiff. Write article now". This gave the impression that the plaintiff could write professional articles at any time, while it was not mentioned that this was a paid service. This in turn puts the plaintiff in a worse light with regard to her professional competence. The fact that a reference to "doctors with special treatment areas" is listed on the basic profile under the heading "Suitable treatment areas and encyclopaedia contents", with visual emphasis, is also suitable for granting hidden advantages to paying doctors where this is not done. It is true that the link takes the user to a list in which doctors with a basic profile are also named. It should also be taken into account that these links serve to make it easier for users to find a doctor, thus promoting the purpose of the portal. However, this only applies as long as the defendant remains a "neutral information intermediary" and offers corresponding information identically on all profiles, which does not happen.
In addition, premium customers are able to book content for their profiles that is suitable for enhancing their appearance and layout compared to the profiles of basic customers, without it being pointed out that services are exclusively available to paying premium customers. The defendant may offer paying customers an extended range of services as long as it maintains its neutrality. Every doctor registered with a basic profile was free to decide whether to buy additional services. However, this had to be done within the framework that the upgraded premium profiles were not associated with doctors with basic profiles or otherwise granted advertising opportunities. However, the services that can be added here, such as the addition of a profile picture or other individual content, of pictures and videos, of specialist articles, interviews, overviews of services and individual evaluation criteria, are "hidden advantages" that are granted without corresponding identification. The design and the reference "not yet deposited" would also create "hidden advantages" for paying physicians in this case, without sufficiently disclosing that these options were only available to paying customers. An average viewer and an Internet user who is not familiar with the defendant's business model would have the impression that the plaintiff had simply failed to load an appealing profile picture, to create a service overview, to deposit individual contents such as practice pictures, specialist articles and interviews or to insert the practice homepage; the impression was created that the plaintiff was a physician who did not attach any importance to her external presentation. On the other hand, on the profiles of the paying physicians the user finds - again without making it clear that it is a paying premium customer - a profile which is individually designed in terms of appearance and content. All in all, this presentation is on the one hand suitable for directing Internet users to the more attractive profiles of the paying physicians. On the other hand, the doctors who were admitted against their will and only with a basic profile would be specifically encouraged to join the group of paying doctors.
The other content that can be added also upgraded premium profiles in search queries. The design and text for the deposit of benefits create the impression that the applicant - who is addressed by name - can create and post overviews of benefits and complete the missing data on her profile. It is not mentioned that the applicant has to register or purchase a customer package. The text without the indication that these are services of premium customers is also suitable here to present the plaintiff in a worse light in comparison to premium customers, because it gives the impression that the plaintiff either does not have any special services or is negligent in maintaining her profile. The "flags" deposited with the so-called "mouse-over text" are not sufficient to enlighten an average recipient, but on the contrary are suitable to be perceived by the typical average user as a seal of quality of the paying doctor. The advantages granted in favour of premium customers would not be regarded as hidden advantages if an average recipient could see at first glance when visiting the profile that he was a paying customer. However, the "little flags" with the inscription "gold" or "platinum" visible on the profiles of premium customers were not suitable for this purpose. It is not apparent from the "flags" that a premium customer - in contrast to the plaintiff with the basic profile - is only entitled to special services because he pays a monthly fee. According to the presentation of the "Fähnchen", it was as if it was a particularly distinguished doctor. The mouse-over text with the information that it is a paying customer appears only if the user moves the cursor over it specifically or by chance; at first glance, it is in no way apparent that there is any text stored there. Why an average recipient should put his cursor on it is not apparent, so that it is left to chance whether a user recognises that there are paying premium customers and non-paying basic customers and that the differently designed profiles are based solely on this distinction - and not on a lack of competence or disinterest.
An exclusion of the right to cancellation under Article 17(3) of the DSGVO does not apply. The processing of the data is only "necessary" in the sense of the provision as long as the defendant maintains its position as a "neutral information intermediary", which is lacking for the reasons stated. In addition, there was a right to injunctive relief against the defendant as a disruptive party due to its capacity as operator of the evaluation platform and "master of the offer". For further details of the reasons given by the Regional Court, reference is made to the reasons for the contested decision (pp. 251 et seq. of the German version).
The defendant contests this in its appeal, in which it pursues its claim for dismissal at first instance. The Regional Court had already failed to take sufficient account of the fact that the mouse-over texts shown on page 3 of the grounds of appeal (p. 294 of the original version) were also displayed without a separate click if the respective position was only selected by chance, so that it could correctly be assumed that the prudent user would also become aware of the text. The blue advertising banner described by the Regional Court is furthermore indisputably not directly on the plaintiff's profile, but only in the context of the search result lists and this in clear advertising delimitation to the actual search result, as it were for paying and non-paying customers, whereby the current design is indisputably shown as on p. 4 f. of the grounds of appeal (p. 295 f. d.A.).
In the case at hand, the defendant asserts that a claim for cancellation is ruled out here because the defendant - which is not even precluded by the right of appeal as a mere legal consideration - is correctly already subject to the so-called media privilege of Art. 85 DSGVO in conjunction with Art. 85 DSGVO. Art. 38 BayDSG. In contrast to the legal situation with § 41 BDSG old version, which is based on the so-called "Spick-me" decision of the Federal Court of Justice (judgment of the Federal Court of Justice in 23.06.2009 - VI ZR 196/08, MMR 2009, 608, is today only based on processing for "journalistic purposes". The European Court of Justice (ECJ, judgment of 16 December 2008 - C-73/07, EuZW 2009, 108 - C/D and others) had stressed that the concept of journalism was to be interpreted broadly and in particular was not restricted to the conventional press. This view was reflected in Recital 153 of the DSGVO, which led the Austrian data protection authority to affirm the media privilege in a decision of 13 August 2018 (Ref.: DSB-D123.077/0003-DSB/2018, Annex B 1, pp. 323 et seq. Furthermore, in its judgment of 12 February 2019 (C-345/17, NVwZ 2019, 465 - E/W), the European Court of Justice had transferred the media privilege to the publication of a video on Platform G by a private individual not professionally active as a journalist. The defendant takes the view that these considerations should apply to it mutatis mutandis, since the data of the doctors listed on its portal would also be processed only to enable an exchange of views on that doctor or to provide users with information on that doctor so that they could exercise their right to freely choose a doctor. This interest in information could not be satisfied by means of classical journalism. Furthermore, the individual evaluations served to disseminate information and opinions about the respective doctor and were covered by the broad protection of journalism. This individually protected exchange of opinions could not be circumvented by the fact that the doctor could use the platform on which the individual statements were made with the request that no reports be made about him. The defendant was - similar to wholesalers in the protection of press freedom - also to be protected as portal operators, as it were, especially since the defendant - unlike, for example, H in the case of so-called 1-star ratings - specifically specifies the rating categories etc. for the submission of ratings itself in order to ensure the relevance and comparability of content; this also contributes to the formation of opinion. In any event, otherwise there was a threat of encroachment on the evaluators' freedom of opinion, which included deciding that they wanted to make their opinion known on the defendant's portal, which is why it was not permissible to point out - together with the plaintiff - that there may be other evaluation portals on the Internet. The scope of the media privilege was also a question to be clarified in accordance with Article 267 TFEU by way of preliminary ruling proceedings before the ECJ.
The defendant is further of the opinion that - also irrespective of the application of the media privilege - the data processing on its portal is in any event lawful, since there is a legitimate interest within the meaning of Article 6 (1) f) DSGVO. 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 freedom of expression and it would be tantamount to censorship if the plaintiff were able to have her profile on the defendant's site deleted and thus remove unwanted ratings from the net. The Federal Court of Justice had ruled on several occasions that there was a considerable public interest in a complete list of doctors in rating portals. The opposing interest of the plaintiff, on the other hand, was to be given less weight, even at the outset, because on the one hand it was only data from her professional activity and thus from her social sphere that had been made publicly accessible by the plaintiff herself on her Internet page (www.Homepage2*.de) and which was therefore less worthy of protection. On the other hand, the data processing pursues the public interest purpose of enabling an exchange of opinion and information about the plaintiff, which affects the area of freedom of information and opinion, which is in any case much more privileged today under Article 17 (3a) DPA. It was correct that the weighing of interests only required that there would be no "disproportionate consequences" for the persons concerned; however, the plaintiff did not assert this and it was in any event not sufficient to be exposed to competitive pressure from other doctors. In addition, the weighing of interests was not only to be based on the interests of the plaintiff, but on all physicians who did not agree with their listing on the portal, whereby a summary examination of the interests of the large number of persons concerned on the basis of empirical values was sufficient to affirm a legitimate interest; this led to a predominance of the interests of the defendant in the weighing of interests.
Furthermore, the applicant was free to object to the data processing in accordance with Article 21(1) sentence 1 of the DPA, for which it was a precondition that the person concerned had to be in atypical circumstances. However, the applicant had not asserted such circumstances in any of its letters and the request for cancellation alone was not sufficient for this purpose.
According to the defendant, the Regional Court did not sufficiently deal with the decision of the Federal Court of Justice of February 20, 2018 - VI ZR 30/17, GRUR 2018, 636 and did not include the core justification for granting a "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 at that time, an advertising banner with paying physicians was directly displayed in the profile of the non-customer. From this circumstance alone, the Federal Court of Justice deduced that data and profiles of non-customers who had been saved and evaluated without their consent had thus been used as an advertising platform for paying competitors. 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 false impression - and not only the lack of a banner for premium customers - was the "hidden advantage" for premium customers, which is why the Federal Court of Justice felt compelled to grant the claim for cancellation. On the other hand, the general fact that premium customers exist and that they have certain advantages was not the reason for the cancellation claim; the same applies, contrary to the Regional Court, to the granting of advantages to paying customers which are not immediately apparent. A "hidden advantage" requires more, namely that the advantage also has concrete effects, which actually also have the potential to have negative effects for non-customers in competition. If - as has been shown - the weighing of interests within the framework of Art. 6 para. 1 lit. f) DSGVO is to avoid disproportionate consequences for the party concerned, a comparable negative effect for the non-customer must therefore be examined and not just a simple advantage for the premium customer, which may not immediately become apparent as an advantage for the premium customer at the fleeting glance of the user.
The Regional Court had equated only (simple) advantages for premium customers with "hidden advantages" within the meaning of the case-law of the Federal Court of Justice without any comprehensible reasons. In fact, there is no hidden advantage granted by the design of the portal objected to by the plaintiff today, at least not any more, and there is nothing else on the profiles of the non-paying customers, which is comparable in its effect only to some extent with the advertising banner objected to by the Federal Court of Justice. It is undisputed that this advertising banner in the profile of non-customers no longer exists, but the profile does not serve as a "starting point" for third-party advertising. The advertisements used by the plaintiff in the search result of a search for a doctor were not the granting of "hidden advantages" to premium customers. These advertisements are clearly identified as such and graphically distinguished from the search results, so that the user becomes aware that a monetary 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 of 12.03.2015 - I ZR 188/13, GRUR 2015, 607), the plaintiff, as a businesswoman in free competition, must accept advertising for third parties. In addition, the plaintiff fails to recognize that the search field for doctors always remains displayed at the top for both paying and non-paying customers, as shown on p. 3 of the pleading of 11 September 2019 (p. 361 of the original version). Therefore, as a standard function of the portal, it is always possible to search for other physicians without detours and to have lists of physicians displayed, which is why the (only previously existing) "More" button is just as "exaggerated" as the link to search lists for physicians with special treatment areas and/or to specialist articles. This applies all the more so because the search query which could be called up via the (earlier) "Further" button called up the same list which could also have been reached via the normal search for doctors, so that it is absurd to speak of the fact that the applicant's profile was used as a starting point for the advertising of third parties
Also, the inserted professional articles do not as such constitute the granting of "hidden advantages" to premium customers, because they are not advertising for the respective author, but rather information about topics of interest to the readers. The link to the author contained in the articles is owed copyright regulations and would be clicked by the users in the fewest cases anyway. Moreover, the authors would not necessarily be in direct competition with the profile holder (neither factually nor locally); if this were the case, it would be coincidental and could change again with each published article, so that the profile would not serve as a projection screen for advertising by the competition either. The mere fact that a user may be able to access a profile of a premium customer through several clicks does not in any case represent a negative consequence for the non-customer, especially since various doctors are suggested to the user in his search for a doctor anyway. Contrary to the Regional Court, the lack of professional articles would not put the plaintiff's professional competence in a bad light, because for the users the evaluations of the actual work and not professional articles on theoretical knowledge are of importance. It should also be taken into account locally that in K only one out of 17 dentists is a paying customer and is ranked below the plaintiff, so that any kind of "pressure" for the plaintiff to become a premium customer of the defendant is completely absent anyway.
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 any case, an impression comparable to the decision of the Federal Court of Justice of February 20, 2018, that the premium customer has no local competition, could not be created by linking to the list - which covers both premium customers and non-customers - anyway. Since the link is located at the very end of the profile, it does not arouse the interest of users who are only interested in the 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 any conclusion in the absence of photos etc. that the respective doctor was not interested in a good external presentation or in winning patients. Users could also search for the physician on the Internet if they were interested in the physician and thus find the physician's own homepage - if available. In this respect, the Regional Court has correctly pointed out that the granting of design options for premium customers is not objectionable in principle; this does not have disproportionate consequences for non-customers. In the profile of a premium customer, the user is sufficiently informed by means of a premium seal/flag and various mouse-over texts that it is a profile of a paying customer and that it is therefore possible for him to enhance his profile with pictures and texts. Contrary to the statements of the Regional Court, the premium seals/flags could not give the user the impression that he was dealing with a particularly distinguished doctor. On the one hand, 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" or "TOP 10" for doctors who are particularly well placed in the ranking - regardless of their customer status - as shown on p. 26 ff. of the reply to the appeal (pp. 327 ff. in German). This means that there is even less reason for the user to see a statement on performance in the seals.
In any event, a claim for cancellation also fails because of Art. 17 para. 3 lit. 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.
For further details of the defendant's submissions, reference is made to the grounds of appeal (pp. 292 et seq. German) and the statement of 11 September 2019 (pp. 359 et seq. German).
The defendant claims that the Court should
Amend the judgment of the Bonn Regional Court of 29 March 2019 - 9 O 157/18 - and dismiss the action - also with regard to the revised applications.
The applicant claims that the Senate should be informed of the application by the deadline of 19 September 2019 (p. 371 et seq.) last,
dismiss the defendant's appeal on the ground that the application for an injunction should be worded as set out in the application for a declaration of invalidity and that the application for an injunction in point 2(c) should be supplemented by the addition of the words '...whereas on the profiles of so-called platinum customers such a reference is omitted'.
The applicant defends the contested decision by elaborating on its arguments at first instance. The defendant's business model is based solely on the advantageous presentation of customers in premium profiles, which steers the users of the portal as inconspicuously as possible but in a targeted manner to the profiles of paying customers. Although the existing commercial interest of the Defendant does not mean that the Defendant is generally no longer allowed to process data in the public interest, the Defendant is in any case not allowed to misuse the meaningless basic profiles of non-paying physicians to sell its own services and to misuse the basic profiles as a marketing instrument.
The defendant's new submission on the so-called media privilege was precluded by the law on appeals 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 only forms an external framework for the dissemination of individual comments by third parties, which the defendant in turn does not adopt as its own, so that the opinion-forming effect is not - which is further required - 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 withdraws from 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 could also not rely on the decision of the Federal Court of Justice of September 23, 2014 (VI ZR 358/13, GRUR 2014, 1228) and the transparency in the health care system required there, as it was not the fundamental admissibility of evaluation portals - which the plaintiff did not question - but only the concrete design of the portal in the individual case. The plaintiff has nothing against a rating portal which behaves "neutrally" towards all customers; it only objects to the design elements of the portal chosen by the defendant which have broken through this principle of neutrality, so that the interests of the defendant no longer outweigh the interests of the plaintiff in the weighing of interests. The attempt of the defendant to qualify the "hidden advantages" granted by its platform as "simple" advantages without relevance to data protection law is in vain: The Regional Court correctly stated that the average user cannot see that the profiles of certain doctors are more advantageously designed because this is a paid service. Thus, the unintentionally created "forced profiles" of non-paying physicians were used as an advertising platform both for the services of competitors and for those of the defendants. The information stored in mouse-over texts was not sufficient to inform users. The Regional Court had convincingly worked out the various "hidden advantages" and had also not "misappropriated" the mouse-over texts and the details of the page presentation and the lines of text there - as shown on p. 4 et seq. of the statement of defence (pp. 335 et seq.).
With regard to application 2(b) - in which the risk of repetition did not cease to exist as a result of the change in the presentation of the portal in the meantime - the defendant failed to recognise that the profile of non-paying doctors had been misused as a starting point and thus as a platform for the advertising of paying doctors, because one could access a list of competitors with just one click. In the case of the lists, it is the case that in realistic search queries - as shown on p. 7 et seq. of the reply to the appeal (pp. 338 et seq.) - the advertising is displayed in the middle of the profiles of the non-payers, while the premium customer is ultimately placed before all non-payers.
The defendant also fails to recognise that the case has nothing to do with the right of objection under Article 21(1) sentence 1 of the DPA, since this is directed against data processing that is lawful under Article 6(1)(e) or (f) DPA, which may not be continued only in the specific case because of a special (often subsequent) situation of the data subject (ex-nunc). However, she - the plaintiff - contests data processing that is no longer covered by Article 6 (1) (f) DPA and is therefore illegal from the outset. The claim for cancellation asserted under Article 17.1 lit. d of the Data Protection Act does not require any prior objection and - as Article 17.1 lit. c of the Data Protection Act shows for this case - is independently in addition to the right of objection. Even if one wanted to see things differently, the defendant had violated its duty to inform under Article 21.4 of the DSGVO. In addition, the plaintiff takes the view that an implied contradiction would in any case have to be seen in her letter of 27 March 2018, sent before the DSGVO entered into force.
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 "neutral information intermediary". The entry into force of the DSGVO had not changed the weighing principles recognised by the Federal Court of Justice in this respect and no further priority for freedom of communication could be derived from Article 17.3 letter a DSGVO; on the contrary, in the case of evaluation portals, it had to be included in the weighing that the person concerned was in a situation in which they could no longer regularly overlook, let alone control, who was what and on what occasion communicated about him or her. "Hidden advantages" would be present with the Regional Court if the defendant no longer restricted itself to summarising the basic data of the individual doctor in profiles on its evaluation portals and to publishing the marks or free text comments of the users, but either uses the data as an advertising platform for the paying competition or promotes its services itself 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 defendant does not sufficiently inform its customers either, 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 eventually be advertised on the pages of the non-paying physicians. If, however, the articles "fit" in terms of their subject matter, it should be noted that the authors - whereby geographical distance is not necessarily an obstacle - are in competition with the doctor on whose profile the reference is published. On their - the plaintiff's - profile, "matching" articles of other dentists with premium status could be found and then one could reach their profile page with a single click. Such a display is not to be found on the profile page of a platinum customer. If - as the defendant believes - the professional articles were associated with added value, it was not understandable why it did 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 pages of the platinum customers there are also neither references to special treatment areas nor advertising for third parties. The decisive point is that the user is not sufficiently informed about the fact that 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 there is a text hidden behind the seal.
For further details, reference is made to the statement of appeal (file, pp. 332 et seq., German version) and the statement of 15 August 2019 (file, pp. 354 et seq., German version).
II. The defendant's appeal is partially well-founded. In addition to the claim for cancellation, the plaintiff is entitled to injunctive relief only with regard to the applications under 2 a), 2 b) and 2 c) and partially with regard to the application under 2 d), so that the remainder of the regional court decision had to be amended and the action dismissed.
The fact that the plaintiff finally dropped her main claim at first instance, which she had only made on the advice of the Regional Court, and returned to the original claims pursued only in the alternative at first instance, was admissible even without a subsequent appeal as a concretisation and clarification of the claim, without affecting the scope of the matter in dispute at the appellate instance (general appeal of the Federal Court of Justice and the Federal Supreme Court). Senate, judgement of 07.06.2018 - 15 U 127/17, BeckRS 2019, 7664 marginal no. 25 with further references) and - because the request was ultimately identical throughout - could not be treated as a (partial) withdrawal of the action in terms of costs. In the opinion of the Senate, the general application for an injunction that had been abandoned was too broadly formulated without reference to a specific form of infringement. Also admissible were the further clarifications in the version of the motion in the hearing before the Senate, which ultimately only cleared up editorial mistakes in the version of the motion.
1. the plaintiff is entitled to a claim for omission of the processing of its 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 their interests with 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 only in their favour for some of the points of the presentation in the evaluation portal which are challenged by them with the lawsuit.
a. The provision in Article 6(1)(f) of the DSGVO relevant to the applicant's claim for injunctive relief is applicable in the present case, since the defendant did not submit a plea of illegality under Article 85(2) DSGVO in conjunction with Art. 38 BayDSG, which was to be examined by the Senate as a purely legal question 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 56- C/D and others; v. 14.02.2019 - C-345/17, NVwZ 2019, 465 marginal 49/51 - E/F; for Art. 38 BayDSG also BeckOK Informations- und Medienrecht/Söder, Ed. 24, Art. 38 BayDSG marginal 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; from 14.02.2019 - 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 14.02.2019 - C-345/17, NVwZ 2019, 465 marginal 57). Finally, it is also not harmful that the actor has the intention of making a profit, as 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, European Court of Justice 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. 14.02.2019 - 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 - I Ltd/J 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 journalistic and editorial level 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, Judgement 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 21.07.2015 - 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 the "G" platform 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 expressions of opinion of the users, but solely of marginal issues in the design of the portal, which as such, however, solely 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 - then under certain circumstances individual protected user ratings are also deleted does not support any other view, because this only represents a "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.
et seq. 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 submitted ... 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 20.02.2018: 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 it decides as a legal entity on the purposes and means of processing personal data of the plaintiff within the meaning of Art. 4 No. 1 DSGVO, 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 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 Par. 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, the 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. w.m.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 trade-off between the plaintiff's right to informational self-determination or the protection of privacy and its 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 users of the portal to freedom of communication (Art. 5 (1) GG, Art. 10 (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 (1) GG (cf. also Art. 15 GrCh) must also be taken into account (cf. also BGH, judgement of 20.02.2018 - VI ZR 30/17, GRUR 2018, 636). When weighting the interests of the portal users, it must be taken into account that, on the one hand, the 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 provide information to potential patients who wish to obtain more detailed information about a particular doctor or doctors of a particular specialty.
bb. In the question of this weighing of individual cases between the aforementioned 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, GRUR 2018, 636), 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 was not yet 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 Federal Data Protection Act 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, Urt. v. 29.03.2019 - 17 O 178/18, BeckRS 2019, 13062), but this can ultimately remain open, because in the concrete case, no standards deviating from the national fundamental rights to be observed in any case and the European Convention on Human Rights, which must be taken into account as a guideline for interpretation, result from this and the parties do not assert such standards. 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 also lead to the low degree of intervention of the data processing, which is due to the fact that only data from the plaintiff's professional activity and thus from her social sphere are processed here and, in addition, only data which the plaintiff herself had previously made publicly accessible via her Internet site, do not in themselves already lead to a successful appeal. These fundamental considerations are irrelevant to the claims for injunctive relief asserted, if only because in the present case it is not a matter of the general operation of a (neutral) evaluation platform for physicians, against which the plaintiff also does not object according to its own submission, 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, GRUR 2018, 636), the Federal Court of Justice (Bundesgerichtshof) did not take the standard of review for the asserted claim for injunctive relief from sec. 29 para. 1 sentence 1 no. 2 BDSG old version, but from sec. 29 para. 1 sentence 1 no. 1 BDSG old version, although the "basic data" of the physician in question, which are the subject matter 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, GRUR 2014, 1228 with further references), that the physician rating portal operated by the defendant fulfils a function approved by the legal system and desired by society (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. Whereas 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 forms of design 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 through the premium packages against payment, 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. 29.03.2019 - 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 physicians, 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 physicians do not have an increased interest in new patients, since they do not use the supposedly simple possibility to introduce 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, GRUR 2018, 636). The Sixth Civil Senate did not solely and exclusively refer to a granted advantage or an improvement in the position of premium customers, but explicitly (additionally) examined a "hidden advantage", which in addition was not only linked to 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 necessary to create a compelling impression within the meaning of the right to express an opinion (on the irrefutability of a conclusion in this area, see most recently BGH, Judgement No. 30/17, GRUR 2018, 636). VI ZR 494/17, NJW 2019, 453; see also Senate, judgment of 7 June 2018 - 15 U 127/17 BeckRS 2019, 7664). In the decision of 20 February 2018 (VI ZR 30/17, GRUR 2018, 636), the mere fact that the user finds a "visually and content-wise individually designed profile" among premium customers, which "aims at a more appealing effect", has obviously not already been considered a "hidden advantage". 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 would have been able to affirm the unlawful processing of the personal data on the very ground that the profile of the plaintiff there contained neither a photo nor 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 for a fee 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 precedence 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 already been the subject of press and TV reporting. It is correct that an individual case analysis 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 Defendant's platform that are challenged by the Plaintiff in the Action:
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 her profile referred to a list of other physicians, whereas this was omitted on the profiles of premium customers.
(1) The reference was made until the amendment (undisputed and documented by screenshots on p. 6 et seq. of the statement of defence, p. 166 et seq. of the German version) by means of the grey button "Others" on the left margin of the plaintiff's profile; below the button was the text "Periodontists in K" in blue letters. According to the screenshots submitted by the plaintiff (see pp. 3 et seq., 67 et seq. in the alternative; Annex K 13, AH I), a further page with a list containing three competing basic local customers, including the plaintiff, was reached via the hint button. Four competing premium customers ["periodontists (with picture) in the vicinity"] were displayed below. By contrast, in the profile of such premium customers (see p. 6, 69 (d.A.), Annex K 14, AH I), such an "other" button was not used.
(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 applicant's profile as a basic customer was used in the present case as an advertising platform, since the user could access a list of local competitors by clicking on the "further" button. In contrast, 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. Even if the defendant defended itself on p. 22 et seq. of the statement of defence (pp. 182 et seq.) by stating that the "other" button had in fact hardly been used, this presentation - which the plaintiff admissibly denies with ignorance on p. 4 et seq. of the Repilk (pp. 193 et seq.) - does not support a different view. In any event, the button was immediately recognisable when the basic profile was called up, without first having to scroll down the page, 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. The extent to which this may have actually happened does not need to be discussed in detail here.
(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 a similar (indirect) indication that or why premium customers did not display a link to local competitors. In this context, it is also irrelevant whether the linked list of local competitors includes not only premium customers but also basic customers. The decisive factor is not to which other physician the portal users are possibly redirected to, but that such a redirection - to whichever other physician - does not exist on the profiles of premium customers.
(c) Finally, in so far as the defendant claims that the grey-shaded "other" button, as can still be seen on the screenshot submitted by the applicant (see above), is no longer used in the meantime and the page is therefore no longer objectionable on this point, this does not preclude a right to injunctive relief. Because 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. 29.03.2019 - 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 a right to injunctive relief in so far as on the list of local competitors previously accessible by means of the reference ("further" button), premium customers are shown differently from basic customers as they were 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 February 20, 2018, but only on another page of the portal that could be reached via a link. However, the Senate also sees in this the granting of a "hidden advantage" to the detriment of the basic customers used as an advertising platform, especially since 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 can 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, on the basis of the representation in dispute on the list (see screenshots in the tenor), for what reason certain local competitors of the plaintiff are depicted with a picture on this list, whereas others are depicted only 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 on 2 c) - admissibly substantiated in terms of content in the deadline of 19 September 2019 - is also unfounded. To the extent that the plaintiff objects to the fact that professional articles of premium customers are also linked on her profile, while this is not the case on the profiles of platinum customers, she is entitled to the most recently requested injunctive relief. The design of the portal in question represents a use of the basic customers as an advertising platform for premium customers, and in the specific case in dispute this type of advertising also constitutes a "hidden advantage" for platinum customers to the detriment 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, sheet 10, 70 German, Annex K 15, AH I) on the profile that other doctors of the same specialty are writing 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, on the profiles of Platinum Customers, the User does not receive any indication as to which professional competitors of these Platinum Customers have written professional articles, as the corresponding heading is simply missing on the page (screenshot p. 84 of the German version; Annex K 15, AH I, Annex K 16, AH I).
(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 - as 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 on the plaintiff's profile - 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 above-mentioned remarks of the Regional Court of Cologne in the decision of 19 December 2018 (28 O 51/18, Annex B1) submitted by the defendant, the Senate is also not of the opinion that the decision of the Federal Court of Justice of 20 February 2018 (28 O 51/18, Annex B1) does not provide the average user of the defendant's portal with a "hidden" advantage.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) The aforementioned design of the portal also leads to a right to injunctive relief in the concrete case under attack, because the inclusion of the link "Matching articles from doctors & medical practitioners" as a concrete form of infringement, which is the subject of the dispute here, creates a "hidden advantage".
As is apparent from the screen shots submitted by the applicant with the application (pages 10 and 70 of the application), the two medical articles referred to in her profile by the link at issue in the dispute originate from two dentists practising in L (Mr M and Mr N, see also page 70 et seq. of the application = page 70 et seq. of the application; Annex K 15, AH I). Since the distance between L and K is not yet too great, at approx. 50-60 km depending on the route chosen, and L is also the nearest major regional centre for the entire region and can also be easily reached from the Eifel via the BAB 1 from the Eifel, the Senate still sees a possible local competition situation, especially since potential patients are likely to be quite prepared to accept somewhat longer distances for travel to the dentist of their choice, depending on the respective speciality and/or the respective disease. In principle, the Senate assumes a distance of up to a maximum of 100 km as a critical limit in the area of normal dentistry without any very special expertise; at least in the absence of other larger regional centres at shorter distances. Insofar as the use as an "advertising platform" is intended to provide a "hidden advantage" here in such a way that the defendant diverts the users of its platform from the basic customers to the premium customers, this can thus be achieved at least theoretically by the two articles in dispute here as a concrete form of infringement (in so far as it differs from the parallel case in the judgment of the Senate of today on Az. 15 U 126/19).
A different conclusion is not justified by the fact that the list of specialist articles evidenced on the applicant's profile may be subject to constant change - as claimed by the defendant's representative at the hearing before the Senate - and that, consequently, at other times or even in the future, it may well be possible to prove the existence of specialist articles on the profile of the applicant's competitors who do not practise in the immediate vicinity. Also the screenshot shown on p. 7 f. of the reply (p. 196 f. d.A.) - which is not the subject of the version of the application and its determination of the specific form of infringement - contained only one local competitor from O, while the other author was located in P and thus in any case outside the radius in question. However, this does not change anything about the act of infringement once it has occurred, which here establishes a presumption of the risk of repetition. Such a risk is also, due to the random selection of the linked articles, still present, at any rate continuously, according to the defendant's own submissions, so that the prima facie evidence cannot be regarded as shaken according to the circumstances.
dd. With regard to the request under 2 d), the defendant's appeal is only partially well-founded. The plaintiff is only partially entitled to injunctive relief with regard to the fact that her profile refers to a list of doctors for special treatment areas, whereas this is not the case for premium customers, namely with regard to her own field of activity.
(1) At the end of the page on the applicant'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 connection with the applicant's specialty (e.g. "breast augmentation" and "hair transplantation") and some of which cover it (e.g. "dental prostheses, dental implants, root canal treatment"). When such a hyperlink is called up, a list of physicians in the relevant specialty is displayed under the heading "Dentists for dental prostheses and dental implants in K (14 hits)" (pp. 12, 87 et seq., Annex K 19, AH I). In the case of paying customers, however, such a reference and note is not found (screenshots, pp. 91 f. (in German), Annex K 20, AH I).
(2) The defendant must partially omit this presentation. Insofar as the link challenged 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 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 be withdrawn 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 thus 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 challenges in its entirety the presentation under the heading 'Suitable treatment areas and encyclopaedia contents Doctors for special treatment areas'. For as far as the list, which is designed as hyperlinks, relates to medical measures which have no contact whatsoever with the plaintiff's special field (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 Senate's point of view, it is far-fetched that a dentist's potential patient is redirected to the site of a dental competitor through the evidence 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 her profile refers to a list of physicians for special treatment areas, on which other physicians are particularly emphasized against payment.
(1) Via the link already challenged in the application under 2 d) ("Doctors for special treatment areas"), the user can access a list of doctors in the relevant specialties who practice at different geographical distances from the applicant. As can be seen from the screenshots submitted by the plaintiff (see pp. 15, 87 et seqq.), the list contains mainly basic customers, but the first line - in the background in a different colour and marked with the word "advertisement" in the upper right corner - lists premium customers who do not practice in the vicinity of the plaintiff but in Q, L or R. 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 has no connection with 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.
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(2) The aforementioned content of the list linked to the applicant'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 applicant.
(a) Admittedly, the representation objected to by the plaintiff, which reserves the particularly attractive upper place for those customers of the defendant who have booked a platinum package, does indeed constitute unequal treatment of paying and non-paying doctors. In the view of the Senate, it is also quite obvious that the basic customers are used as an advertising platform to the extent that the defendant potentially diverts its users to the platinum customers in the first line by means of the clearly advantageous visual presentation and the basic customers in the other area of the list with their simple silhouettes in turn only have the task of serving as a "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.
et seq. The defendant's appeal is also well-founded in so far as, in its application under 2(f), the applicant objects to the fact that its profile refers to a list of doctors for special treatment areas, on which other doctors are specifically mentioned in return for payment.
(1) By this application, the applicant challenges the list - as evidenced by the link challenged in the application under 2(d) - to the effect that a different representation of basic and premium customers has been made on that list, in that the latter, unlike the basic customers, have not been represented on that list by a grey silhouette but by a photograph. According to the screenshots submitted by the applicant (pages 16 and 90, in the alternative), paying doctors were presented on the list, which can be found by means of a link, on a background of contrasting colour under the heading 'Dentists (with picture) in the vicinity', with a photograph, the background of contrasting colour again containing the word 'advertisement' in the upper right-hand corner. The premium customers highlighted in colour in the "advertisement" reappeared in the "normal" search results list without further highlighting, as the screenshot on page 6 of the pleading dated 28.01.2019 (p. 221 of the German version) shows. The fact that, as shown on p. 13 of the statement of defence (p. 173 loc. cit.), the layout has been changed in the meantime - which is probably undisputed according to p. 4/5 of the reply, p. 193/194 loc. cit. But that does not matter either.
(2) For, in accordance with the above statements on the application under 2 e), this is an admissible representation by which the defendant does not abandon its role as a "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 the granting of a "hidden advantage" cannot be said to exist.
yoy The defendant's appeal is also well-founded in so far as, in its application under 2(g), the applicant objects to the fact that advertising for third-party companies is shown on its profile, whereas such advertising is not shown on the profiles of premium customers.
(1) On the screenshots submitted by the applicant (pp. 17 et seq., 93 et seq., Annex K 21, AH I), when the applicant's profile is called up, there is advertising for a lottery company (S+*.com) and a tour operator (T) in the title line and on the right-hand margin. If one then scrolls down to the area above the applicant's ratings by her patients, one finds there in the middle of the profile a moving image advertisement for a car brand (U) or for a domain distributor or a reference to investments or the trade with crypto currencies. The profile of a premium customer does not contain such advertisements, as the screenshots submitted by the plaintiff show (cf. annex K 22, AH I, pp. 19, 95 et seq.).
(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 in order 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 made for local or professional competitors of the plaintiff with regard to the banners displayed, but for completely different industries.
Even if, for the benefit of the applicant, 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 in so far as the plaintiff, in its application under 2(h), objects to the defendant's granting premium customers the opportunity to indicate services offered to a greater extent than it does
(1) On the page of a premium customer, a list of job-related activities (e.g. "Implants, prophylaxis, tooth preservation, gum treatment" etc.) can be found after the contact data under the heading "Overview of services" (see screenshot, p. 21, 97 German version, Annex K 23, AH I). In the applicant's basic profile (see Schedule 22, 98 (old), Annex K 23, AH I), the text "No benefits from Dr. B deposited yet. Are you Dr. B? Please 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 defendant's statement on p. 11 f. of the reply (p. 200 f. d.A.), which is not disputed in this respect, on p. 13 of the statement of defence (p. 173 d.A.), even basic customers were able to make entries under this heading. For this purpose, however, they first had to register with the defendant (free of charge) and could then in any case at that time (for later amendments p. 11 of the statement of defence of 28 January 2019, p. 226 et seq.) only provide five services, while premium customers - depending on the quality of the package they booked with the defendant - can make considerably more entries.
(2) This design of the defendant's portal does not entail any right of injunction on the part of the applicant. 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 to the average user. Although the potential patient is informed by the text found on the basic profile ("No services of Dr. B deposited yet. Are you Dr. B? Deposit your service overview now"), the potential patient is theoretically able to access the login portal of the defendant and thus recognise 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 links in question and informs himself about the requirements for depositing an overview of services on 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 inasmuch as, in its application under 2(i), the applicant objects to the fact that the defendant, unlike her as a basic customer, allows her premium customers to deposit a portrait picture.
(1) On the submitted profile of a premium customer (Annex, pp. 24, 100, id, Annex K 24, AH I), there is a portrait photo in appropriate professional clothing 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" appears (see pp. 25, 101 (in German), Annex K 24, AH I).
(2) With regard to this form, the applicant is not entitled to the claimed right to injunctive relief. For the Senate is not able to establish here either that the defendant uses the plaintiff as a basic customer as an advertising platform in order 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 as to 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 ("This doctor has unfortunately 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 would not be interested in a personal presentation on this portal, which the defendant itself has placed 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 her profile - unlike, for example, in the case of list presentation (claim under 2 b)) - as would be a prerequisite for the assumption that the defendant had abandoned its role as a "neutral information mediator". 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. There are neither competitors with pictures faded in on the plaintiff's profile nor is there a hyperlink or similar on or at the grey shadow, which would direct the defendant to a list of premium customers. 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 obvious, there is no such juxtaposition of her 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") as 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).
The defendant's appeal is also well-founded with regard to the application under 2 j), by which the plaintiff objects to the fact that the defendant, unlike basic customers such as itself, allows premium customers 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 main areas of treatment, his range of services, his special features and his practice are described in more detail or other information for potential patients is left behind (see pp. 27 ff., 103 ff., Annex K 25, AH I). On the other hand, at the corresponding point in the plaintiff's basic profile under the heading "Further information on Dr. B", the text "At this point, physicians 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. B? 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 is linked to an information page of the defendant on the advantages of its premium packages (p. 29, 105 German, Annex K 25, AH I). In the version of the plaintiff's profile that was current at the time of the oral hearing - 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. B? 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 a claim for injunctive relief by the applicant. 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 which is the subject of the 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. Unlike, for example, the presentation of locally and professionally competing doctors on a list, the plaintiff's basic profile does not contain any juxtaposition of her own presentation and the presentation of a premium customer who presents further individual contents and/or pictures of her practice. In this respect, it is also not decisive whether the mouse-over text mentioned above ("Are you Dr. B? 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.
The defendant's appeal is further well-founded in so far as the plaintiff objects, with its application to 2 k), to the fact that the defendant, unlike basic customers such as itself, allows premium customers to indicate and link the address of their own homepage in their profile.
(1) On the first page of a premium customer's profile, the contact data under the heading "Homepage" includes the customer's own Internet address (see Annex K 26, AH I, p. 31,107). On the other hand, the plaintiff's profile as a basic customer (see pp. 32, 108 et seq., Annex K 26, AH I) contains instead the text specified by the defendant "Homepage: not yet deposited", whereby this text is in turn equipped with a mouse-over text ("Are you Dr. B? Book an A Premium Package now to be able to use these and many other functions").
(2) The applicant also has no right to injunctive relief with regard to this different treatment of basic and premium customers. 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 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 of basic customers must first search for their homepage themselves ("H") 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 her, are granted the opportunity to publish professional articles on her 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 (cf. pp. 34, 110 German version, Annex K 27, AH I). On the profile of the plaintiff as a basic customer, at this point of the profile under the heading "Articles by Dr. B" the text "Are you Dr. B? Write article now". The second part of the text again leads as a hyperlink 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. B? Book an A Premium Package now in order to be able to use these and many other functions" (see p. 35, 111 in the original version, Annex K 27, AH I).
(2) In accordance with the above statements on the applications under 2 i) to 2 k), the applicant is not entitled to injunctive relief here either. In this context, the Senate does not fail to recognize that the text used by the defendant "Are you Dr. B? 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 abandoned 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 is it used as an advertising platform for premium customers by directly juxtaposing them, thereby granting them a "hidden advantage" by the defendant.
mm. The defendant's appeal is also well-founded inasmuch as the plaintiff, in its application regarding 2 m), objects to the fact that premium customers, unlike basic customers such as herself, are given the opportunity to post a video on their profile (screenshots pp. 36 ff, 112 ff., Annex K 28, AH I). In accordance with the above statements, the plaintiff is not entitled to injunctive relief in this respect.
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nn. The defendant's appeal is also well-founded to the extent that the plaintiff objects, in its application under 2 n), that premium customers, unlike basic customers such as herself, are given the opportunity to be interviewed by the defendant and to post the interview on the profile (screenshots pp. 39 ff, 115 ff. d.A., Annex K 29, AH I). 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, in its application under 2 o), objects to the fact that premium customers, unlike basic customers such as the plaintiff, are given the opportunity to request individual evaluation criteria on their profile (screenshots, pp. 42, 121 loc. cit., Annex K 30, AH I).
In that respect, too, the applicant has no right to seek an injunction. With regard to the presentation of the personal data challenged by this application, 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 perceptible at all for the user of the portal. With its application, the plaintiff has neither submitted a screenshot of the profile of a premium customer from which it would be possible to see how such a query of individual evaluation criteria appears in the premium profile, nor has it provided information - especially not in a substantiated form - on how these evaluation criteria affect the presentation on the defendant's portal. The printout presented by her from the table of contents of the various packages offered by the defendant (cf. pp. 42, 121 of the German version, Annex K 30, AH I) rather makes it clear that this is an option offered internally by the defendant for premium customers, 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 in so far as the plaintiff, in its application under 2 p), objects to the fact that premium customers, unlike basic customers such as herself, are granted the opportunity to have their profile created and maintained by the defendant (screenshots pp. 43, 122 loc. cit., Annex K 31, AH I). 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 creating and maintaining the 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 professional or other skills than the basic customer.
qq. The defendant's appeal is also logically well-founded in so far as the applicant, in its application under 2(q), objects to the fact that premium customers, unlike basic customers such as itself, are granted the opportunity to use the services of professional copywriters on their profile (screenshots, pp. 44, 123 German, Annex K 32, AH I). In accordance with the comments on applications 2 o) and 2 p), the applicant 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 like her, are granted the opportunity to publish articles on the "Expert Advisor" subpage. In this respect, too, the plaintiff lacks a right to injunctive relief, whereby reference can ultimately also be made here to the comments on motion 2 o) or 2 p). The screenshots submitted by the plaintiff (pp. 45, 124 f. d.A., Annex K 33, AH I) do not show how the user can access the page with this expert guide, in particular whether this is done on the basis of the profile of the premium customer or through a link on the page of the basic customer.
ss. The defendant's appeal is also well-founded to the extent that the plaintiff objects with the motion to 2 s) that premium customers, unlike basic customers such as herself, are granted the opportunity to be interviewed by the defendant and to publish the interview on the "Expert Advisor" subpage (screenshots pp. 47 ff, 126 ff, Annex K 34, AH I). The plaintiff also lacks a right to injunctive relief in this regard, 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, in its application under 2 t), that premium customers, unlike basic customers such as the plaintiff, are given the opportunity to be presented more conspicuously in search queries on special subject areas.
(1) According to the screenshots submitted by the applicant (sheets 49, 50, 128, 129 of the German version, Annex K 35, AH I), premium customers have the possibility of being displayed 'in an advertisement space above the results list' when searching for specific specialist areas. In this case, the premium customer appears with his representation on a field with a blue background, which is underlaid in gold lettering at the top left, marked "Anzeige" (advertisement) and which is listed on the first place of the results list, irrespective of the distance of his practice from that of the plaintiff and the result of the evaluations - neither of these circumstances are indicated in the representation.
(2) In this respect, too, the applicant is not entitled to the claimed 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, as can be seen from the defendant's package description in the screenshots, gold and platinum customers are also offered, in addition to the so-called top placement attacked here, "to be even better highlighted on the profiles of other doctors" (p. 49 of the annex), this may possibly include the granting of a "hidden advantage" by the defendant at the expense of the "other doctors" who are then used as an advertising platform. However, the plaintiff has neither challenged this form of structuring the basic customer profile (§ 308.1 of the Code of Civil Procedure) nor has it put forward any arguments as to how this offer by the defendant to its premium customers is actually implemented on the profile of the basic customers, with the result that the Senate is not in a position to review the granting of a "hidden advantage" in this respect, even in the absence of corresponding findings of fact.
oo. The defendant's appeal is also well-founded in so far as the plaintiff objects, in its application under 2(u), that premium customers, unlike basic customers such as itself, are given the opportunity to be presented more conspicuously in search queries on specific search terms.
According to the screenshots submitted by the plaintiff, the defendant offers its premium customers the possibility of being displayed above the list of results when they enter up to five search terms of a potential patient - previously defined by the customer - (see pp. 51, 130 German, Annex K 36, AH I). The corresponding display of the premium customer is made in a field highlighted in color (here grey at that time) and marked with the term "Display" in the upper right corner (see pp. 52, 131 (in German), Annex K 36, AH I). However, in this regard, the applicant is not entitled to the asserted claim for injunctive relief either. Reference may be made to the comments on the application under 2 t).
vv. The defendant's appeal is well-founded in so far as, by its application under 2(v), the applicant objects to the fact that premium customers are displayed differently from basic customers as they are displayed on the A homepage.
According to the screenshots submitted by the plaintiffs, 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" (pp. 53, 132 German version, Annex K 37, AH I). The corresponding advertisement of the premium customer is displayed on the defendant's home page under the heading "Ratings from patients", showing the photo and name of the premium customer in question as well as an approximately three-line excerpt from a rating given to him (pp. 54, 133 (in German), Annex K 37, AH I).
This presentation on the defendant's rating portal does not constitute a "hidden advantage" within the meaning 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 applicant itself 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 representation 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 stating a place. 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 to the extent that the plaintiff objects, in its application under 2 w), to premium customers being provided with a personal contact person in the defendant's company, unlike basic customers such as itself.
In this respect, too, the applicant has no right to injunctive relief. As the screenshots submitted by her (p. 55, 134 loc. cit, Annex K 38, AH I) show that this offer by the defendant - which, contrary to the plaintiff's application, is not directed at all paying customers but solely at platinum customers - is a pure internum in the defendant's business operations ("We are personally available to answer your questions and requests under a free platinum customer hotline and will give you tips on patient recruitment"), of which the user does not even become aware in the course of his search for a doctor or during other visits to the profiles of basic or premium customers. In this respect, it can also not be established that the Defendant creates a misconception on the part of the User due to the different treatment of Platinum and other customers, which leads to a "hidden advantage" for Platinum customers.
xx. Consequently, the defendant's appeal is ultimately also well-founded inasmuch as the plaintiff, in its motion on 2 x), objects to the fact that premium customers, unlike basic customers such as herself, are granted the opportunity to contact the defendant via a free hotline (screenshots p. 56, 135 German version, Annex K 38, AH I). In accordance with the comments on the motion on 2 w), the plaintiff also lacks a claim for injunctive relief here.
2. the plaintiff can demand the deletion of the data concerning her 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 the "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. The processing of the applicant'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), 2c) 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, which however - 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 to 1). For 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 comply in a single point with the requirements which the basic data protection regulation sets out to protect its interests. However, the defendant is not prevented by the present tenor of the deletion order, which the Senate has already pointed out above under 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 from publicly accessible sources such as the plaintiff's own Internet presence and integrating them into its platform again after appropriate deletion, 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 applicant can in any event rely on the established (partial) infringement on application 2 d) and the infringement on application 2 c) and according to the above, this alone has given 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. 29.03.2019 - 17 O 178/18, BeckRS 2019, 13062 marginal no. 97).
f. Nor can the defendant claim in this context that the applicant should have filed an opposition under Article 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, Art. 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 applicant is entitled to exemption from extrajudicial legal fees in the amount of EUR 415,96 This corresponds to the asserted 0.65 business fee (plus flat-rate expenses and VAT) from the value of the justified claims for cancellation and injunctive relief, whereby it must be taken into account that the application for 2d) was only partially successful and therefore only 50% was to be assessed (= a total of EUR 9,000 here, i.e. EUR 507 for the full fee).
Deviating from the assessment of value by the Regional Court (date of 8 February 2019, sheet 230 R d.A.), the Senate assessed both the plaintiff's claim for cancellation and the individual claims for injunctive relief at EUR 2,000 each within a total amount in dispute of EUR 50,000 deemed appropriate. The relatively low assessment of the application for cancellation is based on the consideration that the plaintiff cannot sustainably achieve its actual goal - to be permanently unlisted on the defendant's platform - 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 to immediately afterwards collect the data again from publicly accessible sources and use 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 ultimately wants to influence the presentation on the defendant's portal with the respective design forms attacked and no longer wants its data to be disseminated there in the form of a "compulsory listing", which it feels as such, since from its point of view this takes place 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 in more detail in the applications for injunctive relief, 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 for the appeal proceedings: EUR 50 000
The amount in dispute for the proceedings at first instance is also set at EUR 50,000 pursuant to § 63, Subsection 3, Sentence 1, No. 2, GKG, in deviation from the assessment of value by the Regional Court in the deadline of February 8, 2019 (sheet 230 R d.A.).
