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Friday, 23 February 2018

German FCJ: doctors can have their profile deleted from rating site - but can they?

A healthy ECG
Germans like to rate things online. We have rating sites for hotels, restaurants, playgrounds and of course - doctors. Jameda is one (of about 10) such websites that focusses on user-generated, anonymous reviews of doctors. 

It has been around for over 10 years, lists around 250.000 German doctors and attracts more than 10m visitors each month. These numbers show how important it is for doctors who appear on the website to be described in a positive light by their patients in order to remain competitive.

Jameda offered two types of listings for doctors. The first, ‘basic’, option included the name, academic title, specialization (if any), address and opening hours. This ‘basic’ option was free, and in fact doctors did not even have to sign up. Instead Jameda has always tried to (proactively) list every doctor in Germany on its website. Next to each listing, the average of the available user ratings was presented in the form of a grade, similar to (German) school grades that range from 1 (best) to 6 (worst). Users could also leave feedback in the form of written reviews in addition to the grading system.

A ‘premium’ option was also available for doctors. This package had the following benefits: doctors could add a profile picture and additional information about their practice. The most notable feature however was that when viewing a ‘basic’ profile, Jameda would show (marked as ‘advertisement’) profiles of ‘premium’ users in the surrounding area that had higher user ratings than the ‘basic’ profile that was being viewed. When ‘premium’ profiles were viewed, no such advertisements were shown.

Obviously, doctors that were subjected to negative reviews either tried to have those reviews deleted or went a step further and asked for their whole profile to be deleted from the website.

let's hope the doctor is good!
The 2014 case

In 2014, Germany’s Federal Court of Justice (FCJ) decided upon a case in which a gynaecologist sought to have his profile deleted from the website. 

In an interesting turn of events, the distinction between ‘basic’ and ‘premium’ profiles was not ruled upon by the courts due to procedural reasons. 

To make a long story short: the plaintiff’s attorneys failed to introduce the relevant facts to the case. As a result, the FCJ looked upon the site as if all profiles were treated equally by Jameda. This turned out to be a decisive factor.

The court’s decision in 2014 was in favour of Jameda, dismissing the doctor’s request for deletion of his profile. According to the judges, Jameda’s processing of doctors’ data is governed by § 29 BDSG (Bundesdatenschutzgesetz, the Federal Data Protection Act). The norm states that:

“the commercial collection, storage, modification or use of personal data for the purpose of transfer, in particular when this serves the purposes of advertising, the activities of credit inquiry agencies or trading in addresses shall be admissible if

1.  there is no reason to assume that the data subject has a legitimate interest in excluding such collection, storage or modification”.

As the required ‘legitimate interest’ (here: of the doctor) can only be assumed after balancing the opposing rights and interests at issue, the court looked at the doctor’s right to informational self-determination and Jameda’s and the reviewing users’ right to freedom of expression, while the professional freedom of both parties was also taken into account.

The FCJ conceded that the inclusion of the doctor in Jameda’s database was able to affect the doctor significantly. Reviews are able to influence patients’ decision which doctor to visit, as well as the doctor’s social and professional reputation. However, the court continued, these aspects only touch the plaintiff’s ‘social sphere’ as opposed to the ‘private’ and ‘secret’ spheres, which are more worthy of protection. Reviews that were factually wrong or otherwise offensive could be removed via a notification process that was implemented by Jameda. In the case at hand, no such reviews regarding the plaintiff were present, he ‘merely’ objected being included in the database at all.

Weighing against these interests of the plaintiff, the FCJ highlighted a considerable interest of the general public with regards to medical services and their quality. While it would indeed be possible for Jameda to continue its business after removing the plaintiff’s data, the judges viewed this as a danger to the informative value of the website as a whole. There would be a good chance that many doctors with negative reviews would ask for removal of their profiles, which would impede Jameda’s goal to present a ‘complete picture’ of medical services in Germany.

In the end, Jameda’s rights and interests outweighed those of the doctor, and his profile remained online.

The 2018 FCJ ruling

Two years after the first Jameda verdict, another doctor took offence not only at some negative reviews (she had an average grade of 4.7), but also at her being included in the database at all. She also highlighted and criticized that other doctors’ profiles (those of ‘premium’ users) were shown next to her entry in the database, and initiated court proceedings in 2016.

While both the Court of first instance and the Court of appeal rejected the plaintiff’s claims, the FCJ sided with her and granted the request for removal of her profile. To this date, only the press release of the FCJ is available. It will be a couple of months before the written reasons are published.

For now, we can confirm that indeed the distinction between ‘basic’ and ‘premium’ profiles was the decisive factor. The judges stress that by providing different information about doctors, depending on whether they are paying customers or not, Jameda had left its position as a ‘neutral’ information facilitator. This became especially visible (or rather ‘invisible’) when viewing the profile of a ‘premium’ doctor, whose profile was presented without showing any nearby alternatives, as opposed to ‘basic’ profiles, that were shown alongside other doctors who had better reviews. This shift in Jameda’s function resulted in a lower weight of the right to freedom of expression on behalf of Jameda, the court found. When balanced against the interests and rights of the plaintiff, the latter came out on top, resulting in the opposite outcome compared to the earlier case.

Future prospects

Reading only the headline of this week’s ruling one could expect a new wave of claims for deletion from the Jameda website by doctors who are discontent with their ratings or just not happy to be in the database at all. However, Jameda appears to have put a stop on such claims before they even gained any traction. On the day of the FCJ’s decision, Jameda stopped the practice the FCJ criticized and is now no longer advertising ‘premium’ customers’ profiles on ‘basic’ customers entries. As a result, we are now back to the situation the FCJ has ruled upon in 2014, meaning it is very unlikely doctors will be able to have their profiles removed. While this move by Jameda might make many of their paying customers unhappy, it should effectively put a stop to further claims for the deletion of profiles. It remains to be seen if the status quo will be contested by other doctors who do not want to be included in Jameda’s website.

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