Right to delete data passed on to a testing service provider and to the HIS database after repairs have been carried out

After a claim for damages has been made following a traffic accident, the personal data of the injured party is regularly passed on to testing service providers and the HIS system by the opposing liability insurance company. In proceedings before the Schweinfurt Regional Court, we asserted the deletion of this data on behalf of our client. In the associated (legally binding) judgment of 12.04.2021, Az. 23 O 899/20The Schweinfurt Regional Court affirmed these claims for deletion in the case of testing service providers after completion of testing and settlement and with regard to the HIS system, but did not consider the fundamental disclosure of the data to be objectionable:

Responsibility for the deletion of data disclosed to third parties:

According to Art. 17 para. 1 letter a) DSGVO, personal data must be deleted as soon as they are no longer necessary for the purposes for which they were collected or otherwise processed. This is the case in particular where an examination procedure underlying the collection or storage of data has been finally concluded with regard to the recorded data (ECJ, NJW 2018 767 [769]). The deletion as such has to be carried out by the “responsible party” in the sense of Art. 4 No. 7 GDPR, whereby, however, in the event that the (continuous) storage at a responsible party is caused by a third party, this third party is obligated to take action against the responsible party in the context of a claim for injunctive relief (cf. OLG Frankfurt a.M., GRUR 2018, 1283 [1285]).

Claim for deletion of data passed on by the tortfeasor’s liability insurance to a testing service provider after testing and settlement have been completed:

With regard to the data of the plaintiff deposited with the testing institution carexpert Kfz-Sachverständigen GmbH, it is irrelevant at this point that the second defendant), in the context of the settlement of the claim, legitimately passed on the expert opinion of the private expert, including the data of the plaintiff, to carexpert GmbH for the purpose of checking the calculation (see e.g. OLG Frankfurt a.M., DS 2019, 261 [262] m.w.N.). In any case, the test assignment has been completed in the meantime, so that there is no longer any reason to continue storing the data. The repair damage was settled between the parties; the purpose for the further use of the plaintiff’s data at carexpert GmbH has thus ceased to exist, so that the second defendant) must work towards the deletion of the plaintiff’s personal data there.

Claim for deletion of data passed on to HIS by the tortfeasor’s liability insurance after repairs have been carried out (also in the case of fictitious settlement):

It is true that the legitimate interest of the second defendant, as a participant in the insurance industry, to report fictitiously settled claims in the HIS, inter alia, to prevent future insurance fraud, originally outweighed the plaintiff’s interest in informational self-determination (cf. OLG Hamm, decision of 14.02.2018, Az. 11 U 126/17, BeckRS 2018, 14071 mAnm. Exter, NZV 2018, 583; LG Münster, judgment of 04.08.2017, Az. 16 O 93/17, BeckRS 2017, 149303; LG Kassel, NJW-RR 2014, 854), however, the plaintiff has also submitted a sufficient repair confirmation in the meantime. This confirmation shows that the accident damage has been completely and professionally repaired (see previously). This certificate submitted to the second defendant therefore eliminates its interest – which was justified until the certificate was submitted – in avoiding double billing of the damage already settled by continuing to store the accident in dispute reported to the HIS on […] in the course of reporting an alleged new accident. Due to the confirmed complete repair of the accidental damage here of […], a renewed liquidation/registration is already ruled out by the merits of the case; a continuous storage in the HIS is therefore not required, so that the defendant must work towards the deletion of the plaintiff’s personal data there.

Basic disclosure of personal data to testing service providers and HIS justified:

As shown above, the transmission of the data to carexpert GmbH for the purpose of verifying the findings of the private expert as well as the initiation of the entry of the accident in the HIS was not objectionable, but was justified by the legitimate interests of the second defendant.

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