OLG Köln: Jameda partially inadmissible
Overview
The button, which had been abolished in the meantime and was used to display “other” doctors in the immediate vicinity on the profile of the basic customers, but not for premium customers, had created the incorrect impression that the premium customers had no local competition. The button displayed for basic customers was to be regarded as a “jump platform” to the profiles of other doctors. For users, it was not clear why a reference to local competition was displayed in a basic profile, but not in a premium profile. Even if the platform had abolished the button in the meantime, it could still be ordered to cease and desist, as there was a risk of repetition.
Also the different visual representation between basic and premium customers in listings represents – in contrast to the visual representation on the individual profiles – a hidden advantage. This creates a considerable “optical gap” between basic customers and premium customers, with the result that the platform intervenes in a guiding manner in the competition between local competitors prior to the final choice of doctor.
Another impermissible hidden advantage is that users are referred to specialist articles by other doctors on the profile of basic customers, which is not the case with platinum customers. This gives users the inaccurate impression that basic customers do not want 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 physicians practicing at a distance of up to 100 km from non-paying physicians, a possible competitive situation would arise.
Finally, the reference on the profile of the basic customers to doctors with special fields of treatment in the same specialist field is also an inadmissible 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 in the “special” medical field, whereas in the case of premium customers, no reference could encourage patients to continue their search for a doctor who is as qualified as possible.
Legally, the court has based the claim of the plaintiffs on the deletion of the profile established without consent or on the omission of the concrete forms of infringement on §§ 823 para. 2, 1004 BGB analogously in connection with Art. 6 para. 1 f) DSGVO. In this context, it has decided that the evaluation platform cannot rely on the so-called media privilege of the Basic Data Protection Regulation (Art. 85 para. 2 DSGVO). The platform’s business model could not be seen as a separate opinion-forming activity, but at best as an auxiliary service for the better dissemination of (third-party) information.
On the other hand, the Senate did not object to other functions of the portal, such as the possibility for premium customers to indicate the medical services offered on the profile to a greater extent than for basic customers. In this respect, the Senate dismissed the actions of the two plaintiffs on the successful appeal of the evaluation platform.
The Senate has admitted the appeal for both sides in both proceedings, since the question in which cases an evaluation platform leaves its role as a “neutral information mediator” has not yet been fully clarified in supreme court rulings and will have significance for a large number of future proceedings. The decision of the Federal Court of Justice of 20.02.2019 (VI ZR 301/17) only referred to an individual case concerning the design of the evaluation platform.
