In its ruling of February 20, 2018, the Federal Court of Justice ruled that a doctor review portal must delete the profile of a female doctor (ruling of September 23, 2014 – VI ZR 358/13). By differentiating between normal users and paid “premium users”, the review portal abandoned its role as a “neutral information provider”. As a result, the right to informational self-determination with regard to all personal data prevails after the necessary balancing of interests.
Doctor search portal offers premium package for a fee
Jameda.de is a doctor search and doctor rating portal. It provides information about doctors and other healthcare professionals free of charge. It contains the so-called “basic data” for each doctor, such as academic degree, name, specialty, practice address, contact details and consultation hours. In addition, the portal also offers a rating area where customer ratings are displayed directly next to the basic data.
For non-premium users, in addition to the ratings and basic data, the profile page also displays suggestions (“ads“) for other medical practices with the same specialties and the corresponding rating in the area.
Doctors have the option of booking a “premium package” for a fee. In this case – in contrast to the free profiles – users are given the opportunity to add pictures and additional information. In addition, the portal then no longer places advertisements from competitors on the profile pages of premium users.
Dermatologist requests the deletion of her normal user profile
A dermatologist and allergist has been taking action against the platform since 2015. As a non-payer, she is listed on the portal against her will without a picture, but with all other basic data. In the past, she also received a large number of reviews, some of which she had objected to and deleted by her lawyer in order to improve her overall rating. However, the portal operator did not comply with the request to delete her profile.
The Regional Court of Cologne and the Higher Regional Court of Cologne gave priority to the portal operator’s freedom of expression and media freedom. The plaintiff’s right to informational self-determination had to take a back seat as part of the balancing process.
BGH: Doctor’s right to have her profile deleted
However, the BGH has now spoken out clearly against this view. The present case differs from all cases decided to date. Even if the storage of doctors’ personal data with the associated ratings by patients is permissible in principle, the portal operator of jameda.de is obliged to delete the dermatologist’s profile.
Jameda.de is not a neutral doctor search and rating portal
By offering “premium packages”, the platform is abandoning its position as a “neutral information intermediary”. At no point is it clear to those seeking medical advice that the portal differentiates between “premium users” and normal users. However, if the portal operator withdraws in this way from its role as a neutral information intermediary in favor of its advertising offer, then it can only assert its legal position based on the fundamental right of freedom of opinion and media freedom with less weight compared to the dermatologist’s right to informational self-determination.
This in turn means that the right to informational self-determination must be given priority in the context of a balancing of interests. Accordingly, she also had an interest worthy of protection in the exclusion of the storage of her data (within the meaning of the § Section 29 (1) sentence 1 no. 1 BDSG old version ) should be granted.
The ruling of the BGH represents an important precedent for the handling of personal data in review portals. By ordering the deletion of the dermatologist’s profile, the BGH is sending a signal that the protection of informational self-determination must be given greater weight in cases where a supposedly neutral portal pursues commercial interests through premium offers. For platform operators such as Jameda.de, this means that they must critically scrutinize their role as information providers and be transparent. As soon as commercial interests – for example through premium profiles – come to the fore, the portal loses its neutrality and can therefore no longer cite freedom of opinion and media freedom as an argument without restriction. The placement of competitor ads only for non-payers and the individual profile design for premium users creates a hidden economic pressure that calls into question the voluntary nature of participation. Particularly in the sensitive area of health services and the protection of trust, a strict separation between neutral information and advertising offers is crucial. The BGH ruling shows that data protection and transparency in review portals are urgently needed priorities and thus strengthens the right of the people concerned to decide for themselves about their digital profiles.
