Right to forget: Federal Constitutional Court strengthens freedom of communication in Germany and contradicts CJEU

Yesterday, the Federal Constitutional Court (BVerfG) published two decisions on the "Right to Forget" (BVerfG of 6 November 2019 - case 1 BvR 16/13, Right to Forget I, and case 1 BvR 276/17 - Right to Forget II). These decisions are remarkable in many respects, not the least because the standards of the BVerfG for a delisting claim against Google clearly differ from the standards established by the Court of Justice of the European Union (CJEU) in its "Google Spain" decision (CJEU of 13 May 2014 - C-131/12, CRi 2014, pp. 77-89 with remarks from an US-perspective by Spelman/Towle, CRi 2014, p. 85-87, and from an Irish perspective by Tobin, CRi 2014, pp. 87-89; see in German Arning/Moos/Schefzig, CR 2014, 447 (452 ff.), who had already called for a correction by the BVerfG at that time).

In the Google Spain case, a Spanish private individual had asked Google to remove links to a newspaper ad from the person search result. The ad had appeared in a daily newspaper in 1998. The ad concerned the forced sale of a property belonging to the plaintiff.

In "Right to Forget II", the managing director of a company demanded Google to remove a link from the person search to a piece by Norddeutscher Rundfunk (NDR) entitled "Termination: The nasty tricks of the employers". The piece originated in 2010 and dealt critically with a dismissal that the plaintiff had initiated.

CJEU Approach

In the "Google Spain" case, the CJEU affirmed a claim for delisting and held that the link to the newspaper article seriously infringed the plaintiff's privacy rights. In addition, these privacy rights should in principle take precedence over the information interests of Internet users. Exceptional circumstances, which would justify the linking, did not exist according to the CJEU:

"In the light of the potential seriousness of that interference, it is clear that it cannot be justified by merely the economic interest which the operator of such an engine has in that processing. However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, in situations such as that at issue in the main proceedings a fair balance should be sought in particular between that interest and the data subject’s fundamental rights under Articles 7 and 8 of the Charter. Whilst it is true that the data subject’s rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life. ". (CJEU of 13 May 2014 - C-131/12, CRi 2014, pp. 77-89 para. 81; emphasis added)

BVerfG Approach

The BVerfG, on the other hand, does not assume that privacy rights take precedence, but emphasises the equal status of other fundamental rights:

"On the basis of the relevant law, the fundamental rights of one side are to be brought into balance with opposing fundamental rights of the other side ... In accordance with the equal freedom in which data processors and data subjects confront each other under private law, the protection of the fundamental rights is determined in accordance with a balancing act. (BVerfG of 6 November 2019 - 1 BvR 276/17, para. 96)

In contrast to the CJEU, the BVerfG also takes into account not only the entrepreneurial freedom of Google (Art. 16 Charter) and the information interests of users (Art. 11 Charter), but also the freedom of expression of content providers:

"In this constellation, it cannot be decided whether there is a delisting right without considering the question if and to what extent the content provider is entitled to disseminate the information pursuant to Art. 11 Charter". (BVerfG of 6 November 2019 - 1 BvR 276/17, para. 109)

The Decisive Difference

This is not to be taken lightly:  In its "Google Spain" ruling, the CJEU considered the question of whether the linked content was lawful or unlawful to be irrelevant (CJEU of 13 May 2014 - Case C-131/12, CRi 2014, 77 para 83 et seq.). The BVerfG, on the other hand, believes that this question should always be examined.

With its decision, the BVerfG restores a balance of fundamental rights that had been under threat of getting out of hand since the "Google Spain" decision (see Arning/Moos/Schefzig, CR 2014, 447 (452 ff.)). At the same time, the BVerfG - for the first time - declares itself competent to decide on violations of European fundamental rights itself (BVerfG of 6 November 2019 - 1 BvR 276/17, para. 50 et seq.). This gives rise to the hope that one can continue to rely in Germany on a jurisprudence that carefully balances the personal rights of citizens and the freedoms of opinion, press and communication.

Conclusion

On default, neither personal rights nor data protection take precedence over free communication in Germany.