To the overview
Yesterday, the Higher Regional Court of Cologne issued an exciting ruling that also provides information on the permissible design of many other comparison and rating platforms in all other sectors based on the relevant BGH case law. In this case, two doctors successfully sued Jameda for deletion of the profile they had created without their consent. The OLG considered numerous functions to be inadmissible, with which Jameda leaves the permissible role of “neutral information broker” and grants paying doctors “hidden advantages” in an inadmissible manner.
The problematic functions
The court objected to the fact that the profile of the plaintiff , which was set up without consent, referred to a list of other doctors, while the profiles of the doctors who pay contributions to Jemeda did not contain such a reference. It was also inadmissible that the paying doctors were shown in listings with a picture, while only a gray silhouette was shown for the other doctors. The same applies to the reference to specialist articles by paying doctors, while no such reference is made on the profiles of platinum customers. Finally, the reference to a list of doctors for special treatment areas, which is also not visible on the profiles of paying doctors, is also inadmissible. Unlike the Regional Court, which had deemed the entire design of the platform to be inadmissible at first instance, the Higher Regional Court examined the various functions on a case-by-case basis. According to the case law of the BGH, the decisive factor was whether the platform had abandoned its fundamentally protected position as a “neutral information intermediary” by providing paying customers with “hidden benefits”. This would be the case if the basic customers who were added to the portal without their consent were used as an “advertising platform” for premium customers and the latter were granted an advantage through the presentation that was not recognizable to the users.
Then the portal is no longer just for the exchange of information between patients. In this case, doctors would not have to accept being listed as basic customers without their consent.
With the functions described above, the portal is leaving its function as a “neutral information intermediary”.
In detail
The button, which has since been removed and was used to display “other” doctors in the immediate vicinity on the profile of basic customers, but not for premium customers, gave the incorrect impression that premium customers had no local competition. The button displayed for basic customers was to be seen as a “jump-off platform” to the profiles of other doctors. It was not clear to users why a reference to local competition was displayed for a basic profile, but not for a premium profile. Even if the platform had removed the button in the meantime, it could be ordered to cease and desist, as there was a risk of repetition. The different visual presentation between basic and premium customers in listings also constitutes a hidden advantage – in contrast to the visual presentation on the individual profiles. This creates a considerable “visual gap” between basic and premium customers, whereby the platform interferes with competition between local competitors in the run-up to the final choice of doctor. The fact that users are referred to specialist articles by other doctors on the profile of basic customers, which is not the case for platinum customers, is also an impermissible hidden advantage. This gives users the incorrect impression that basic customers do not want to or cannot publish corresponding specialist articles. In fact, however, this function can only be used if the doctor books a premium package. In any case, if the displayed articles came from paying doctors who practiced at a distance of up to 100 km from non-paying doctors, a possible competitive situation would arise. Finally, the reference on the profile of the basic customers to doctors with special areas of treatment in the same specialist field was also an impermissible hidden advantage. The hyperlink could give the user the impression that the doctor may not be sufficiently qualified because his profile refers to other colleagues for the “special” medical field, whereas in the case of premium customers, no reference could encourage patients to continue their search for the most qualified doctor possible. In legal terms, the court based the plaintiffs’ claim for deletion of the profile set up without consent and for injunctive relief against the specific forms of infringement on Sections 823 para.
2, 1004 BGB analogous in conjunction with Art. 1 f) GDPR. In this context, it decided that the review platform cannot rely on the so-called media privilege of the General Data Protection Regulation (Art. 85 para. 2 GDPR). The platform’s business model could not be seen as an opinion-forming activity in its own right, but at best as an auxiliary service for the better dissemination of (third-party) information. However, the Senate did not object to other functions of the portal, such as the option for premium customers to specify the medical services offered on their profile to a greater extent than for basic customers. In this respect, the Senate dismissed the actions of the two plaintiffs following the successful appeal by the rating platform. The Senate allowed an appeal on points of law for both sides in both proceedings, as the question of the cases in which a rating platform abandons its role as a “neutral information intermediary” has not yet been fully clarified in supreme court case law and will be important for a large number of future proceedings. The decision of the Federal Court of Justice from 20.02.2019 (VI ZR 301/17) only referred to an individual case regarding the design of the review platform.
