When insurers are obliged under the DSGVO

On 25.05.2018 the basic data protection regulation of the European Union (EU-DSGVO) came into force. Regulations apply directly and immediately – implementation by national legislators is not required. Meanwhile, further regulations and directives are in preparation, which are potentially intended to restrict freedom of expression – for example to counter fake news.

 

No information from the insurer about the benefits derived

The Brühl Local Court (ruling of 2 May 2018, file no. 23 C 407/17) decided that the data protection law does not give policyholders (UN) the right to information regarding the benefits derived by the insurer (VR) from the premium payments received.

However, economic benefits of the BoD do not constitute personal data that is subject to disclosure.

Anyone who wants to find out what benefits the BoD has derived after challenge, revocation, withdrawal or objection will have to accept the fact that he will need a private expert or the involvement of an actuarial expert in order to be able to formulate a conclusive and substantiated statement of claim for a court of law or out of court in the first place, because according to the Federal Court of Justice (BGH) the BoD does not have to make any calculations here. Some UN bodies then realise for the first time that this expenditure for the purchase of necessary expertise is not even covered by their own legal protection conditions (ARB).

Right to information against insurers as a lucrative legal dispute

The Federal Court of Justice (ruling of 19 April 2018, file no. IX ZB 62/17) decided that the value of the subject matter or the amount in dispute of a claim for information is a matter of how little the claimant’s knowledge is. The less the person entitled to information (still) knows, the higher the fraction that can be set off against the actual main thing. The more urgently the UN is dependent on information, for example due to loss of documents after a move or due to a flood, the higher the amount in dispute and thus the costs. Other courts take into account the additional effort of collecting the information.

Information on premiums paid by the insurer, §§ 242, 810 BGB

Following a revocation or objection by the UN, some insurers also refuse to provide the customer with information on the premiums they have paid, which is necessary for the unjust reversal of the claim under enrichment law, together with the grounds for the claim. An explicit request for information in accordance with data protection regulations can help here.

Some insurers employ “after-sales managers” whose job description reads as if it were a matter of appeasing justified requests from the UN. Such managers of the BoD then ask the UN which legal claim they think they have to obtain the information.

In such cases, it is helpful to immediately assert a comprehensive right to information (according to the Federal Data Protection Act, until recently the EU-DSGVO, today the EU-DSGVO) on all personal information, with the insurer’s data protection officer, together with a copy to the state data protection officer. The insurers have regularly and comprehensively complied with this, sometimes after they wanted to defend themselves that this was an abuse of rights.

Refusal to provide information as harassment?

Even if the actually desired information is not included, this makes so much work for the insurer that he will think twice in the future to provoke the customer into making such claims for comprehensive data protection information that cannot be automatically generated at the push of a button.

For example, this can also be useful for information about stored services, diagnoses and previous illnesses – a request expressly in accordance with data protection law or the EU-DSGVO increases the willingness to provide information enormously. This has also become known as the procedure when a private health insurance company repeatedly requests the same medical reports, treatment plans, diagnoses, etc. in order to presumably delay the reimbursement of treatment costs.

The purpose of the data protection information is to enable the UN to comprehensively check all data for accuracy and to demand the correction or deletion of incorrect data. For example, an incorrectly stored diagnosis can lead to problems later on when contracts are changed, tariff changes or new contracts are concluded, or even in cases of benefits – correcting incorrect data after comprehensive information prevents this.

There is also the accountability

When the BoD settles a claim, or sends an assessor after a claim, the UN often remains uninformed. Just as many an insurance broker forgets that the UN is his client and therefore the principal. In this case, an account is always owed, which is often given unwillingly in the case of late additional claims, § 666 BGB. In private health insurance, for example, it could be about what was billed and paid for via the clinic card. Just like on a car inspection invoice it said “Fog lights adjusted” – but these did not exist at all.

 

by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm

 

by courtesy of

www.experten.de (published on 24.06.2019)

Link: https://www.experten.de/2019/06/24/wann-versicherer-nach-der-dsgvo-in-der-pflicht-sind/?utm_source=newsletter&utm_medium=email&utm_campaign=20190624+experts+report

 

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About the author

Dr. Johannes Fiala Dr. Johannes Fiala

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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