By Flemming Moos
In a landmark judgment in June, the German Federal Court of Justice generally approved of an online platform that allows pupils to evaluate their teachers. In its verdict, the court also clarified the privacy requirements to be met by the operators of such platforms.
The Internet platform Spickmich.de offers a forum where secondary school pupils can evaluate their teacher’s performance. Since starting up about two years ago, the Web site has grown to approximately one million users. Pupils can evaluate their teachers by grading them in categories such as “cool and funny,” “popular,” “motivated,” “gives fair marks,” and “teaches well.” The pupils use the same grades by which their own work is rated, ranging from 1 for excellent to 6 for unsatisfactory.
One teacher claimed that the site breaches her right to privacy and took the case to the federal court of justice in Karlsruhe. The court ruled that pupils can rate their teachers online, rejecting the teacher’s bid to shut down the site that gave her a low grade. The judges said that freedom of expression was more important than the teacher's right to privacy.
However, the court intensively scrutinized the online rating platform under German data protection rules and came to some interesting conclusions which are of general relevance to all Internet rating Web sites.
First of all, the court took the view that German data protection laws generally apply to judgments and expressions of opinions since they would qualify as personally identifiable information in terms of applicable data protection laws. Furthermore, the court held that the so-called “media privilege” would not apply to the rating Web site. According to this media privilege, the collection, processing, and use of personal data for journalistic-editorial or literary purposes are to a certain extent exempt from the general privacy rules. Yet the court decided against an application of this media privilege here. Its reasoning? The court felt the teacher rating platform would lack the required journalistic-editorial treatment of the information.
Even more important, the court applied Sec. 29 of the German Federal Data Protection Act to the rating Web site; a clause which was initially designed for credit agencies. In order for the communication of personal data to be lawful under this provision, the third party to whom the data are disclosed must credibly prove to have a justified interest in knowledge of the data—a requirement which cannot be met by the Internet forum since the users are anonymous. By way of an interpretation of this clause in accordance with constitutional principles (in particular, the freedom of speech), the court waived this requirement for the specific online rating platform, spickmich.de, based on a balancing of interests of the teacher that is being rated on the one side and the user of the platform who wants to access the information on the other side. In this regard, the court also took into account that the platform is only accessible to registered users and the ratings are not disseminated to the general public.
As a consequence, online rating platforms can be operated in Germany in accordance with privacy laws; however, they must always be subject to a balancing of interest test taking into account inter alia the nature and content of the data and the purposes which underlie the (public) communication of the data.