Germany's Federal Constitutional Court issues landmark decision on the 'right to be forgotten'

Both the non-constitutional courts and the CJEU have been concerned for some time with claims to erasure of personal data on the internet. The reason is the need, known by the catchy name of the ‘right to be forgotten’, to curtail its permanent and ubiquitous availability to protect the right to privacy. Two cases have now found their way to Germany’s Federal Constitutional Court, which has issued noteworthy decisions. It affirms the CJEU ruling and imposes special obligations on media companies.

Decision of 6 November 2019 – Right to be forgotten 1 (1 BvR 16/13)

The first of two decisions published at the same time considers the question of protective claims against the distribution of old press reports in an online archive. The appellant had been given a non-appealable life sentence for murder in 1982. Reports at that time by the news magazine ‘DER SPIEGEL’, which mention the appellant by name, are retrievable free of charge from the online archives of the magazine and appear among the first hits following a name-based search in the usual search engines. After an unsuccessful action for an injunction against reporting using real names, the Federal Constitutional Court has now found in favour of the appellant.

The court is weighing up the conflicting fundamental rights which apply in this case by means of indirect third-party effects in the relationship between the claimant and the press publisher. Specifically, the court is weighing the general right to privacy of the person concerned in terms of its protection of the right to free expression against the freedom of speech and of the press, expressly including the conditions of communication on the internet.

The Federal Constitutional Court, having regard to information technology and the dissemination of data via the internet, reiterates the principle established in the case law that a legitimate interest in identifying crime reporting decreases as time passes since the criminal act. Unlike in the analogue age, digitalised information is available perpetually to everyone and can be combined into personality profiles by name-based searches using search engines, the court said.

However, since the general right to privacy mandates the further development and changing of attitudes and behaviours, past offences should not remain public for an unlimited period, and so a ‘right to be forgotten’ exists figuratively in that respect, the court said. This right does not exist unreservedly, however, but is always to be reconciled with the freedom of speech and of the press which collide in this case.

The Federal Constitutional Court resolves this conflict such that in principle a publisher may also publish initially lawfully published reports in an online archive, saying that restrictive measures only come into consideration if those concerned demonstrate their need for protection in more detail. In the necessary consideration of an individual case, the Federal Constitutional Court specifies various criteria for the non-constitutional courts: the subject and effect of the reporting, as well as the time interval since the events in question are to be included in the consideration in exactly the same way as, for instance, changes in behaviour by the person concerned in the meantime, or the reach of the information due to the rapid traceability via search engines.

Remarkably enough, the Federal Constitution Court accused the Federal Court of Justice that it did not consider more moderate means in the reconciliation of interests is noteworthy. This is because, in the opinion of the Federal Constitutional Court, the outcome of consideration can certainly be a compromise. The court imposes an obligation on the press publishing houses and points out the technical option of – rather than deleting an article – only making it generally harder for search engines to find. Since this procedure actually makes it impossible to retrieve the article, the court suggests as an alternative to the publishing houses the challenging solution of preventing the display of the article in search engines with a name-based retrieval query, but for others, allowing the search terms characterising the article to be retrievable and then also allowing them to be displayed in full.

To what extent such measures are reasonable and necessary in order to achieve a fair reconciliation of the conflicting interests will have to be specified by the non-constitutional courts. To what extent the (partial) irretrievability of articles by the content-offering site can actually be technically and financially implemented will likewise still have to be clarified.

Decision of 6 November 2019 – Right to be forgotten 2 (1 BvR 276/17)

In the second decision on the right to be forgotten, the Federal Constitutional Court considered a very similar question. In that case, however, the complainant had not taken action against the content of an article, but against the search engine hit referring to it, which appeared based on a personal name search. She had asked Google in vain to hide the displayed link to the article in a TV listings magazine in which she was portrayed negatively. The Federal Constitutional Court had to decide for the first time on a right to erasure of search engine entries, which the CJEU had already recognised in 2014 and which had established a right to be forgotten in that respect. Although the relevant privacy regulations concern fully harmonised law, the court affirms the right to lodge a complaint and for the first time carries out an examination using the EU fundamental rights as the standard. However, the decision is of lasting value, not only from the perspective of the doctrine of fundamental rights.

The court weighs the entrepreneurial freedom of the search engine operator, the public interest in information as well as the indirectly concerned freedom of speech of the content-offering site against the fundamental right to respect the private and family life of the complainant on an equal footing. Unlike the CJEU in its prior Google decision, the Federal Constitutional Court rejects the fundamental priority of the right to privacy, at least in the present situation. In all other respects it confirms its consideration criteria. In particular, the lawfulness alone of the linked content was not relevant to the assessment of the objected-to link as a separate form of data processing, which is why the search engine operator also does not only have subsidiary liability.

As part of such weighing, what is relevant is the extent to which the dissemination of the article impairs the personality development of the person concerned, in particular through its fast and permanent accessibility by means of name-based search engines queries. The time interval between original publication and retrievability is also to be considered, in line with the basic concept of the right to be forgotten.

In its decision the Federal Constitutional Court held that since the article concerned the professional, publicly relevant conduct of the complainant, it was justified in the light of a continuing, albeit decreasing, public interest in information. Therefore, there was no right to delisting of the search engine entry in question. The right to privacy carried less weight in the assessment partly because the person concerned had consented to an interview which was the subject of the contested article and thus had deliberately exposed herself to public perception.