Verdict: Health insurance companies are not allowed to permanently save photos of insured persons

SG Berlin: Health card does not justify storage in stock
Health insurance companies may not permanently save the photos of their insured persons received for the electronic health card. Storage in stock would contradict the requirement of data avoidance and economy and violate the right to informational self-determination, the Berlin Social Court decided in a recently published final judgment (file number: S 208 KR 2111/16).

Since 2015, the electronic health card has been the only valid proof of statutory health insurance. The "master data" of the insured person are stored on the chip, including name, date of birth, address and gender. In order to prevent misuse of the health card, it also includes a photo of the insured.

In this specific case, a Berliner fought a small war with his health insurance company because of the issuance of his electronic health card. At first, he repeatedly refused to send a photo. He asked for a health card without a photo. He can prove his identity with the identity card.

The man feared that his photo, once stored in digital form, could not be checked. If the data ever fell into the “wild” or unauthorized hands, it would “no longer be possible to capture”, the insured person said. The obligation to send photos would violate his right to his own picture.

In the end, he sent photos to his cash register several times, but all of them were so blurred that the insured could not be recognized. At the same time, he asked his health insurance company to ensure that they would not save these or future photos permanently.

The health insurance company insisted on the permanent storage of the insured photo. This would be needed if the health card is lost.

In court, the insured now requested that the health insurance company undertakes not to save photos sent in the future.

The social court now confirmed the man in his judgment of June 27, 2017. In order to be able to issue an electronic health card, insured persons would have to send a “current photo” along with their master data. The storage of social data, including the photograph, is only permitted if it is necessary for the purposes of health insurance.

After issuing the health card, the health insurance no longer needs the picture. The sole purpose is that the doctor's identity can be checked at a glance. Permanent storage in stock is not necessary. It would therefore contradict the principle of data avoidance and economy and violate the right to informational self-determination. If the insured person needs a new health card, he can easily submit a new and current photo.

However, insured persons would have to accept temporary storage, according to the social court with reference to a decision of the Federal Social Court of November 18, 2014 (file number: B 1 KR 35/13 R; JurAgentur report from the day of the judgment). The judges in Kassel approved the electronic health card and the associated storage of social data.

Since the introduction of the electronic health card, courts have had to deal with numerous lawsuits brought by critical insured persons. According to a ruling by the Baden-Württemberg State Social Court (LSG) on January 24, 2017, insured persons cannot request a health card without a photo, even for religious reasons (file number: L 11 KR 3562/16; JurAgentur report from April 3, 2017). At most, certain modifications could be allowed, such as an exception to the ban on headgear.

The health insurance company also does not have to assume the passport photo costs incurred for the health card, according to the LSG Rhineland-Palatinate in a decision of March 20, 2014 (file number: L 5 KR 32/14 NZB).

Even if the health insurance companies emphasize the necessity of the photo on the health card for later identification, the photos sent in are obviously not always looked at so closely. Berlin's BKK VBU made the headlines because it printed the photo sent in by an insured person on their health card without any problems. The cookie monster from Sesame Street could be seen on the likeness. fle / mwo / fle

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