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Higher Regional Court judgment: Lawful evaluation of doctors on the Internet
Open portals for physician evaluation on the Internet are legal. This emerges from a recent judgment of the Frankfurt Higher Regional Court. Up to the OLG, a doctor had sued for the deletion of an entry on the rating portal Jameda.
The OLG did not follow the doctor's right to deletion of her assessment in the now published judgment (Az. 16 U 125/1), but decided that the assessment, after weighing up the applicant's right to personality, was covered by the fundamental right of freedom of expression and information. Accordingly, doctors have to put up with the evaluation of their performance on appropriate portals.
Doctor requested deletion of her rating Different internet portals offer a doctor rating, which is determined from the comments of the users. Some statutory health insurance companies, such as the Barmer GEK and the AOK or the Association of Replacement Funds, also provide corresponding offers, whereby these are expressly not intended to act as a public pillory for doctors, but rather to support patients in their search for a doctor. However, the plaintiff disagreed with the type of performance evaluation on the Jameda internet portal and therefore brought the matter before the court. The anonymous evaluation of her performance on the portal could not be reconciled with the special relationship of trust that exists between the doctor and the patient and, moreover, her personal right was violated, the doctor had justified her complaint. Since Jameda is not a closed forum, but everyone can give an anonymous rating here, there is a risk of manipulation, although a suspicion of this must make the entries appear unreliable. A deletion is therefore urgently required, so the claimant.
Doctor's assessment compatible with personality rights The doctor had already failed at the Frankfurt Regional Court to request the deletion of her assessment and subsequently chose the route to the OLG. But the judges of the Higher Regional Court also dismissed their request. The applicant has no right to have the entry on the doctor rating portal deleted. Even taking into account the doctor's personality right, the publication of the assessment is covered by the fundamental right of freedom of expression and information. The judges countered the argument that an incorrect assessment by laypeople took place here, that the right to express opinions is not limited to general value judgments by specialists, but also includes the statements of laypersons. Especially since the users of the portal are aware that there is no scientifically based assessment here. Execution as an open forum, in which anonymous assessments and multiple registrations are possible, is necessary in the judges' opinion, since experience has shown that many people are put off by an assessment as soon as they have to provide their name.
Physician rating on open portals susceptible to manipulation The OLG could not follow the comparison cited by the applicant with the teacher rating portal Spickmich, in which the rating is less susceptible to manipulation, since multiple registrations with an email address are excluded. In contrast to doctors, teachers are not active in a closed, delimitable room, so that it is not possible to limit the number of persons authorized to access. However, on the basis of the OLG ruling, Jameda's allegation of manipulation cannot be completely refuted. The doctor had also argued that doctors could use the portal to advertise their practice with fake reviews. In principle, doctors are not allowed advertising based on unchecked self-assessment, so the plaintiff's position. In addition, those who are not satisfied with the ratings can manipulate them and distort their meaningfulness. For example, the positive approach of an independent doctor's assessment does involve some uncertainties that are not adequately discussed in the current verdict. However, if all negative entries were deleted, the patients would not be helped either, which is why the operators of the portals appear to be primarily asked to protect themselves against manipulation. (fp)
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