judgment of the Federal Court of Justice [BGH] of 1st March 2016, file ref No. VI ZR 34/15
The defendant was an administrator of the web portal where registered users can appraise services of physicians according to the marking scale used in German schools (6-1) in five categories (treatment, information, confidentiality, time devoted to a patient) as well as make own comments.
The plaintiff is a dentist who by one of the users was judged: “I cannot recommend this physician”. The plaintiff got an overall mark 4.8 which was made up of the marks gained in individual aforementioned categories. The dentist denied having ever treated the user judging him.
At the pretrial stage, the Defendant was called on by the dentist to remove the judgment. He passed the dentist’s remarks on to the judging user, however, due to the regulations on protection of personal data, the user’s response was not made available to the physician. The judgment was still available on the portal. The Plaintiff laid a claim for stopping further display of the disputed judgment.
BGH declared that the Defendant could be responsible for judgments placed by users of the portal only if he neglected his own duties to control the content published. While determining the scope of such duties it is important to take account of, among other things, seriousness of the violations of law found, administrator’s opportunity to get acquainted with the content published as well as the function performed by a given bulletin. However, an administrator may not be required to carry out such controlling duties which can threaten the business aim of his model of activity or make it excessively difficult.
But in case of a portal appraising physicians, right from the start there is an increased risk of personal rights infringement, increased by the possibility of judgments being made by anonymous users or those using pseudonyms. Therefore, the Defendant should not only send to the user reservations of the physician but also require from him to provide a more detailed description of the medical appointment that was the basis for judgment and to submit documents proving that the medical appointment actually took place, such as prescriptions, treatment record etc.