German rating portal Jameda was ordered to delete the listing of a physician by the German Federal Court of Justice. The fundamental right to data protection prevailed over the portal’s right to freedom of expression and freedom of the media because of the specific placement of advertisement by the portal. The decision may have significant impact on other rating platforms and search engines, depending on business model.
The physician requested the deletion of her listing which the portal had included without her consent. The physician argued a violation of her personality rights, in particular data protection.
In a previous case, the court had ruled that physicians may be listed by the portal without their consent. The portal’s right to freedom of expression and freedom of the media had prevailed over the right to data protection by the physician.
However, the court ruled differently here, because of newly implemented advertisement by competing physicians. Such advertisement was only shown next to listings of non-paying physicians. Because of such advertisement, the court argued that the portal abandoned its neutral position as a mere information provider. According to the court, without such neutral position, the physician’s personality rights prevailed.
The case shows that it is imperative to assess the design and the business model of a platform in great detail to ensure legal compliance. The platform seems to have reacted already on the day of the ruling and has switched off advertisement by competing physicians – likely to prevent numerous similar claims.