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Doctor rating portal may list doctors without consent based on legitimate interests

The Bundesgerichtshof ("BGH"), Germany's highest court in the system of ordinary jurisdiction, ruled on 15 February 2022 that doctors who are listed on a doctor rating portal without having consented to such listing do not have the right to request deletion of their profile based on Art. 17 GDPR.

According to the BGH, the rating portal is entitled to list doctors based on its legitimate interests (Art. 6(1) lit. f GDPR) to enable its active users to express and disseminate an opinion, which is protected by Art. 11 (1) EUCFR, and providing passive users with the opportunity - also covered by Art. 11 EUCFR  - to take note of such opinion.

The BGH further opined that the processing of the doctor's personal data was necessary to achieve the the legitimate interests, although this requirement is to be interpreted restrictively. According to the BGH, the processing of the - as complete as possible - personal data of the doctors listed in the portal  is indispensable for the operation of the rating portal. Without sufficient identifiability, such a portal would neither be able to provide the portal users with an overview of available doctors and their specialization, nor to have the doctors evaluated by the users of the portal. The publication of names, information relating to the doctor's occupation as well as ratings for the doctors does therefore not go beyond what is absolutely necessary in this respect.

This decision is not only relevant for the doctor rating portal. The arguments of the BGH's decision may also be applied to other rating portals.

By operating its portal and the associated processing of the plaintiff's personal data, the defendant is safeguarding legitimate user interests to the extent that it enables active users to express and disseminate an opinion, which is protected by Art. 11 (1) EUCFR, and provides passive users with the opportunity - also covered by Art. 11 EUCFR - to take note of it.

Tags

gdpr, eucfr, rating portal, right to be forgotten, right to deletion

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