OLG Wien: Teacher evaluation app "Lernsieg" unlawful

Jan 21, 2022 Benn-Ibler Rechtsanwälte

The Vienna Higher Regional Court (Oberlandesgericht Wien, OLG) has declared the teacher evaluation app "Lernsieg" unlawful. Specifically, it objected to the fact that there are only inadequate measures to verify the authenticity of the raters.

In the proceedings, a teacher sued the operator of the app "Lernsieg" for an omission of the processing of his personal data in the app. He complained that there was no legitimate interest for the data processing (Art 6 para 1 lit f of the General Data Protection Regulation - GDPR). Specifically, he complained about a "pillorying effect" in the app.

"Lernsieg" allows pupils to rate their teachers in various categories with 1 to 5 stars. The app displays an average rating for each teacher if there are at least five ratings.

The OLG ruled in favour of the teacher:

It initially stated that the evaluation of teachers by pupils via an app is in principle a legitimate interest. According to the OLG, the "contribution to opinion-forming and quality assurance" that can be achieved through the ratings outweighs the teacher's interest in unrestricted confidentiality.

However, the app in the version in question is unsuitable to achieve these legitimate goals, since it is not verified whether users who submit a rating are actually being taught by the teacher being evaluated. The OLG could not "even begin to recognise" an interest worthy of protection to open up the rating possibilities to third parties who were never taught by the teacher in question. Accordingly, the app opens up the great danger that students, e.g. after a bad grade, will persuade "a large number of third parties outside the school" to leave a bad rating. It is also conceivable that private conflicts could be settled via the app.

Since the app does not offer any effective mechanisms against irrelevant "propoganda", the court denied a legitimate interest in the data processing.

OLG Wien 11 R 148/21x (15.11.2021)