OGH: Data processing in a teacher evaluation app is permissible after all

Mar 11, 2022 Benn-Ibler Rechtsanwälte

In this case, the Austrian Supreme Court (Oberster Gerichtshof, OGH) examined the question of prohibiting the processing of personal data in the course of evaluations of a teacher.

The plaintiff is a teacher at an HTL (a Higher Technical Education Institute). Concerned about potential negative impact on his private life due to the possible pillorying effect of various ratings by his students and the lack of public interest in the information, he requested the prohibition of the teacher evaluation app operated by the second defendant and developed by the first defendant. The app uses a "star rating" system of individual categories with subcategories - e.g. punctuality, respect, patience or assertiveness - to enable pupils to rate the respective teacher. The terms of use state that a rating may only be made if the student has had a personal experience with the teacher. The preceding examination by the data protection authority was in fact discontinued.

While the court of first instance did not uphold the claim, the court of appeal prohibited the processing unless it was ensured that the students giving the ratings were also taught by the teacher in question.

The OGH ruled as follows:

According to Art 6 para 1 lit f of the General Data Protection Regulation (GDPR), data processing is lawful if the legitimate interests of the responsible party or a third party outweigh the interests or fundamental rights or freedoms of the data subject, in particular in the form of freedom of expression and information. In any case, an assessment must also be made as to whether the economic reputation and honour of the plaintiff are damaged under Section 1330 of the Austrian General Civil Code. However, it is not obvious that a teacher is threatened with professional disadvantages by a bad rating, since the professional environment enjoys less protection from public statements than the private sphere. Nor does a rating by pupils who were not taught by the plaintiff make the data processing simply unlawful. The encroachment on the plaintiff's interests through the objectionable data processing is not to be valued higher than the interest of the entirety of app users in being able to evaluate the plaintiff's teaching activities.

OGH 6 Ob 129/21w (02.02.2022)