OGH: Physicians' Rating Portal is Permissible

Sept 23, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has declared the processing of personal data of physicians by a rating platform to be permissible.

A Vienna ophthalmologist and the Vienna Medical Association sued a physicians' rating platform where a wide variety of physicians can be located and rated. The data of the doctors is taken from a public directory without their consent. Specifically, the ophthalmologist demanded the deletion of her personal data and the ratings linked to it.

The Austrian Supreme Court held that the processing of the doctor's personal data was lawful pursuant to Art 6 para 1 lit f of the General Data Protection Regulation (GDPR). Lawfulness here requires three criteria:

• Legitimate interest of the portal provider or third parties (such as users)
• Necessity of data processing
• No overriding interests, fundamental rights, and freedoms of the individuals concerned (the physicians)

A legitimate interest is generally present in the case of rating platforms as it lies within the permissible range of freedom of expression and allow opinions to be expressed and disseminated.

Data processing is necessary for this purpose because listing physicians as comprehensively as possible as well as identifiability of the physicians is essential for running a rating platform in a useful manner. Only necessary profession-specific information is published. Therefore, the processing of such data does not go beyond what is strictly necessary.

Finally, the balance of interests tips in favour of the platform, as follows:

The potential dangers of a platform for physicians (such as competition among physicians, jeopardising their professional livelihood) are offset specifically by considerable public interest offered through information and evaluation opportunities. Above all, platforms can contribute to more transparent services within the health care system. In addition, physicians who offer their services publicly must, on principle, accept the risk of poor ratings.

Also, to some extent, abuse of the platform by anonymous users must be tolerated. The reporting procedure provided by the platform, which allows doctors to have inaccurate ratings deleted, is sufficient.

OGH 6 Ob 198/21t (29 August 2022)