Federal Supreme Court, Judgment of 13.12.2022 – VI ZR 60/21
Background
The plaintiff is a doctor about whom a so-called basic profile exists on the website Jameda.de. These basic profiles are created by the operators of the website on the basis of publicly accessible data about a large number of doctors.
The plaintiff had not booked any paid offers at Jamenda.de and had not otherwise consented to the publication of his professional data on the portal. He demanded that the operators of the website delete his data.
The Federal Court of Justice dismissed the action and thus upheld the defendant doctors‘ portal Jameda.de.
Reasons
The plaintiff cannot demand the deletion of his data on the basis of the GDPR. There is a case of legitimate interest according to Art. 6 para. 1 f) DSGVO. By including all doctors on the portal as completely as possible, the defendant provides the public with an overview of which medical services are offered by whom and where.
The defendant’s interest in the operation of the portal thus firstly falls within the scope of protection of Article 11 (1) CFR, which already according to its wording protects not only the expression of one’s own opinion, but also the dissemination of other people’s opinions and information. Furthermore, the operation of the portal, with which the defendant fulfils a function that is fundamentally approved by the legal system and desired by society, is also part of the defendant’s commercial activity protected by Article 16 CFR, especially in its form as a business model.
For these reasons alone, the operation of the portal is in the legitimate interest of the defendant; with the associated processing of the plaintiff’s personal data, it is thus safeguarding its own legitimate interests.
By operating its portal and the associated processing of the plaintiff’s personal data, the defendant protects legitimate user interests to the extent that it enables active users to express and disseminate an opinion, which is protected by Article 11 (1) CFR, and provides passive users with the opportunity – also covered by Article 11 CFR – to take note of it.
Also, the processing of the said personal data of the plaintiff is „necessary“ for the achievement of the legitimate interests of the defendant and its users. Admittedly, this requirement must be interpreted restrictively; exceptions and limitations with regard to the protection of personal data must be limited to what is absolutely necessary. In the present case, however, the requirement of necessity is met.
The processing by the defendant of the personal data of the doctors listed in the portal – as complete as possible – is indispensable for the operation of the rating portal. Without their sufficient identifiability, such a portal would neither be able to provide the portal users with an overview of the doctors who come into question for them and their condition, nor to have them evaluated by the users of the portal.
The presentation on the basic profiles, which is limited to names, academic degrees, job-related information and assessments given, fulfils this purpose and does not go beyond what is absolutely necessary in this respect.
Evaluation
In the present decision, the Federal Court of Justice had to rule on a claim for erasure under the GDPR. As a regulation of the European Union, a measure covered by it is not measured against German fundamental rights, but against the fundamental rights of the Charter of Fundamental Rights of the European Union.
It had to be examined whether a claim for deletion arose from the GDPR. This was denied, as the data processing complained of by the plaintiff was lawful. The legitimate interest of the public outweighed the plaintiff’s interest in deletion. This applies precisely because the doctors‘ portal only processes the plaintiff’s data that is actually necessary to protect the legitimate interests.
Dr. iur. Christoph Roos
Specialist lawyer for medical law
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