Federal Constitutional Court: Right to Be Forgotten II 1
Tobias Hilfrich
in

Federal Constitutional Court: Right to Be Forgotten II

What is it all about?

The decision entitled ‘Right to be forgotten II’, published today, supplemented by the decision of the same day ‘Right to Forget I’(see article),is based on a dispute concerning a matter which is fully harmonised under EU law. The First Senate of the Federal Constitutional Court has therefore applied the Charter of Fundamental Rights of the European Union and rejected a constitutional complaint against a judgment of the Higher Regional Court of Celle. The latter had dismissed a claim brought by the complainant against a search engine operator in which it objected to the fact that, on searches for her name, the link to a transcript of a television report entered in an online archive in 2010 had been established. which, by name, was accused of unfair treatment of a dismissed worker.

The Federal Constitutional Court first held that the applicable rules were fully harmonised under EU law and that, therefore, the fundamental rights of the Basic Law were not applicable. However, in so far as the fundamental rights of the Basic Law are superseded by the primacy of EU law, the Federal Constitutional Court controls its application by German authorities on the basis of THE eurights fundamental rights, so that there are no gaps in protection. It thereby assumes its responsibility for integration within the framework of Article 23 GG.

On the substance, the Senate states that the fundamental rights of the Charter, such as those of the Basic Law, not only guarantee protection in the state-citizen relationship, but also in private-law disputes, and must be reconciled in this respect. To this end, the Higher Regional Court has appropriately placed the fundamental rights positions of the parties and the fundamental rights of third parties to be taken into account, in particular the considerable freedom of expression of the Norddeutscher Rundfunk, which is responsible for the contribution, in the weighing.

Facts

1. On 21 January 2010, Norddeutsche Rundfunk broadcast a contribution by the television magazine “Panorama” entitled “Cancellation: The nasty tricks of employers”. Towards the end of this article, for which the complainant had previously given an interview, the case of a sacked former employee of the company she was managing was presented. In the following connection to the planned establishment of a works council, she was accused in the article of unfair treatment of the employee.

Norddeutsche Rundfunk posted a file with a transcript of this post on its website under the title “The nasty tricks of employers”. When entering the complainant’s name in the search engine operator Google’s search engine system, one of the first search results was the link to this file. After the latter refused to provide the evidence of this page, the appellant brought an action, which was dismissed by the Higher Regional Court. The appellant could not, in paragraph 35,000, 2 Sentence 2 BDSG a. F. still from paragraph 823 para. 1, Section 1004 of the German Civil Code (BGB) in conjunction with Art. 1, Art. 1 GG claim the removal of the link (in addition: elimination).

2. By her constitutional complaint, the complainant alleges a violation of her general right to personality and her fundamental right to informational self-determination. Even the title of the search result is distorting, since it never used “nasty tricks”. The search result evokes a negative perception of her as a person who is likely to degrade her as a private person. Moreover, the report is so long ago that there is no longer any legitimate public interest in it, even as a result of the passage of time.

Key considerations of the Senate

Ⅰ. The procedure gives rise, first of all, to specify the constitutional review standard in the context of EU law.

1. The claim for exclusion pursued by the appellant in the main proceedings, both for the data protection directive in force at the time and for the current General Data Protection Regulation, is governed by legislation which is fully standardised and therefore apply equally in all the countries of the European Union. The question of which personal data a search engine may prove on search queries also does not fall within the scope of the so-called media privilege, for which the Member States have room for manoeuvre (in contrast to the legal situation in the decision entitled ‘Right to forget I’ of the same day, PM No 83/2019).

2. In the application of rules which are fully harmonised under EU law, it is not German fundamental rights that are, in principle, decisive, but only EU fundamental rights. EU law has priority in this respect of the fundamental rights of the Basic Law. This is in line with the established case law of the Federal Constitutional Court as to whether fully harmonised rules violate fundamental rights. Nothing else applies to the question of whether the fully harmonised technical law is applied in accordance with fundamental rights.

(a) The application of the fundamental rights of the Union follows from the transfer of sovereign powers to the European Union. If these rules create the same rules in all Member States and should be applied uniformly, the protection of fundamental rights to be guaranteed in the application of these rules must also be uniform. This is pre-existing, with the use of the respective Member States’ standards of fundamental rights. For at present, it cannot be assumed that these standards of fundamental rights in the Member States are congruent beyond the common basis of the European Convention on Human Rights. They reflect a wide range of actual differences in the Member States as well as their own historical experiences. Nor can it be assumed that the protection of fundamental rights in the Charter of Fundamental Rights coincides precisely with that of the Basic Law. Thus, it must be assumed that the fundamental rights of EU law and national rights are at their own admission.

(b) According to the settled case-law of the Federal Constitutional Court, the primacy of application of EU law is subject to the proviso that the protection of fundamental rights is sufficiently effective by THE fundamental rights of the European Union. It is therefore necessary that their protection must be essentially equal to the protection of fundamental rights, which is required by the Basic Law as indispensable. According to the current state of EU law, particularly in the application of the Charter, this is the case.

3. The Federal Constitutional Court has now ruled for the first time that it examines the application of EU law by German authorities themselves on the basis of EU fundamental rights, in so far as they supplant German fundamental rights.

a) In its previous case-law, the Federal Constitutional Court has not expressly considered an examination on the basis of THE fundamental rights of the European Union. Insofar as it has not applied fundamental rights, it has, on the contrary, completely renounced an examination of fundamental rights and left the control of fundamental rights to the specialised courts in cooperation with the European Court of Justice. That case-law related to situations in which, directly or indirectly, the validity of EU law, that is to say, its application, was in question.

(b) On the other hand, if, as in the present case, the question arises as to whether German courts or authorities have satisfied the requirements of EU fundamental rights to be observed in the application of fully harmonised EU law in the individual case, the Federal Constitutional Court cannot rely on the withdraw a fundamental rights review; on the contrary, it is then one of its tasks to ensure the protection of fundamental rights by the standards of EU fundamental rights. The articles of Article 23 of the 1 GG’s proposed opening of the Basic Law to EU law does not mean a withdrawal of the German state authority from responsibility for the matters entrusted to the Union; on the contrary, it provides for the participation of the German authorities and thus also of the Federal Constitutional Court in their development. By including the fundamental rights of the Union as a standard of examination, the Federal Constitutional Court therefore assumes its responsibility for integration in the proceedings of the constitutional complaint.

In particular, the decisive factor in this respect is that, in the present state of EU law, there would otherwise be a gap in the protection of the application of EU fundamental rights to special jurisdiction. There is no possibility for individuals to claim the infringement of fundamental rights of THE European Union by the specialised courts of the Member States directly before the European Court of Justice. Unlike German law, EU law does not have a constitutional complaint. Nor is this gap sufficiently closed by the federal constitutional court’s previous review of the specialised courts’ obligation to refer the matter to the European Court of Justice.

4. In so far as the Federal Constitutional Court takes the fundamental rights of the Charter of Fundamental Rights as a criterion of examination, it exercises its control in close cooperation with the European Court of Justice. It is the responsibility for the last binding interpretation of EU law, and therefore also of the fundamental rights of the Charter. Insofar as it has not already clarified its interpretation or the principles of interpretation applicable are not obvious on its own, for example on the basis of case law of the European Court of Human Rights, the Federal Constitutional Court shall Questions in accordance with Article 267(4) 3 TFEU. Whether the specialised courts, insofar as they decide at last instance in the case of the special is the case, also remain subject to a fee in that regard, did not need to be decided.

5. The question of whether the fundamental rights of the Basic Law or the Charter are to be applied, as is apparent from the two Senate decisions entitled ‘Right to Forget I and II’ published today, depends to a large extent on a distinction between fully unified and open to the design of EU law. This is based on an interpretation of the applicable eu law and cannot be decided along the distinction between vague legal concepts and discretions, which are not governed by EU law in accordance with German law. in the same way as German law. On the contrary, it is necessary to examine, in relation to the relevant rule of EU law, whether or not it is designed to enable diversity and to assert different assessments.

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6. Although the First Senate of the Federal Constitutional Court has thus for the first time decided to examine constitutional complaints on the basis of the control of the fundamental rights of the Union, no decision of the plenary was required. According to Paragraph 16 of the BVerfGG, this is only required if a Senate wishes to depart from a view of the other Senate which is the main subject to the decision. There is no such deviation, in particular from the case-law of both Senates, which is based on the so-called Solange II decision of the Second Senate (see BVerfGE 73, 339 >387 ). The sole purpose of that case was whether and to what extent Eu-Union and fully harmonised national law should be examined on the basis of the basic law. On the other hand, it did not consider the applicability of the fundamental rights of the Union – and even more so the Charter of Fundamental Rights, which only became binding in 2009 – either explicitly or implicitly, and made neither a positive nor a negative statement in this regard. Nothing else emerges from recent decisions of the Second Senate.

Permissible but unfounded

Ⅱ. In substance, the constitutional complaint was admissible, but was unsuccessful

1. The appellant has the power to appeal, since she can rely on the fundamental rights of the Union. By relying on a breach of its right to develop its personality, it alleges that its fundamental rights are respected by respect for private and family life and for the protection of personal data under Article 7 and Article 8 of the GRCh. The fact that, in that regard, it mentions the fundamental rights of the Basic Law and not the fundamental rights of the Charter is harmless. If only the wrong standard is mentioned, but the substance is substantiated, the constitutional complaint will not be inadmissible.

2. However, the constitutional complaint was unfounded.

As with the application of the fundamental rights of the Basic Law, the Federal Constitutional Court does not examine the correct application of simple law (i.e. the data protection directive in force at the time and the Federal Data Protection Act), but only whether the specialised courts and have found a reasonable balance between them in the context of the necessary balance. The Federal Constitutional Court has affirmed this.

a) Like the fundamental rights of the Basic Law, the fundamental rights of the Charter guarantee not only protection in the state-citizen relationship, but also in private law disputes. On the part of the complainant, the balance must be based on the fundamental rights to respect for private and family life under Article 7 of the GRCh and to the protection of personal data under Article 8 of the GRCh. Those guarantees are equivalent in Article 8 of the ECHR.

(b) On the part of the defendant search engine operator, his right to the freedom to conduct a business must be terminated under Article 16 of the CRCh, whereas he cannot rely on freedom of expression under Article 11 of the GRCh for the dissemination of search evidence. However, the fundamental rights of third parties directly affected by such a dispute must be discontinued and, therefore, in the present case, the freedom of expression of Norddeutscher Rundfunk, in addition to the information interests of users. Since it is a question of whether the search engine operator may be prohibited from distributing the contributions provided by a third party, in this case Norddeutscher Rundfunk, such a prohibition may at the same time impose an independent restriction on the freedom of expression of the third party. Are. This is because it deprives him of an available service provider and thus in parts an important medium for the dissemination of its reports. This is not a mere reflex of an arrangement with the search engine operator. On the contrary, the decision is directly linked to the expression and use of freedom of expression, since the aim is specifically to restrict the dissemination of the contribution because of its content.

(c) The basis for the assessment shall be the activity of the search engine operator, which must be assessed independently with regard to the restrictions on fundamental rights associated with it. The question whether he acted lawfully is not the same as the question whether the publication of the contribution by the third party was lawful, even if there may be interactions in that regard. Thus, an approach to the search engine operator is also not subsidiary to such a against the third party as a content provider.

(d) According to the decision of the Federal Constitutional Court, it is true that, in the context of the weighing up, the weight of the economic interests of the search engine operator alone is not, in principle, sufficiently heavy to limit the right of data concerned to protection. However, the public interest in information and, in particular, the fundamental rights of third parties to be included may be given greater weight. In the present case, the freedom of expression of Norddeutscher Rundfunk, which is burdened by the decision and in that regard entitled to fundamental rights, must be included in the balance as a fundamental right directly concerned. Therefore, unlike some decisions of the European Court of Justice, which concerned other situations in that regard, there is no presumption that the protection of the right of personality is a priority; on the contrary, the fundamental rights at issue must be balanced on an equal footing. Just as individuals cannot unilaterally determine to the media what information is disseminated about them in the context of public communication, they have such a determinant power vis-a-vis the search engine operators.

(e) In weighing up the weighting of the restriction of fundamental rights of the persons concerned, it is important to what extent, by disseminating the contribution at issue, in particular taking into account the possibility of name-related searches, they are their personal development. This is not sufficient to assess the reporting in its original context; on the contrary, account must also be taken of the easy and continuous accessibility of the information by the search engine. In particular, account must also be taken of the importance of the period between the original publication and its subsequent proof, as is also standardised in Article 17 GDPR according to the guiding principle of a ‘right to be forgotten’.

(f) According to those criteria, the contested decision is not, as a result, objectionable. The Higher Regional Court weighs up both the protection of the right of personality on the part of the complainant and the freedom of the search engine operator to conduct a business, the latter rightly in conjunction with the freedom of expression of the North German and the internet users’ interest in access. The consideration of the Higher Regional Court is within the technical court evaluation framework.

However, it is too short-sighted if the complainant considers it to be affected only in her social sphere. The discoverability and merging of information by means of name-related search queries means that it is almost impossible to distinguish between the private and social spheres for their effects. However, as a criterion for the weighting of the subject-matter of the contribution, not of the impact on the persons concerned, that distinction retains its validity. In this respect, the Higher Regional Court is capable of stateing that the contribution relates to the complainant’s professional conduct affecting society, but not solely to her private life, and, in this respect, by a continuing, if public information interest is also justified over time. In this respect, the appellant must accept incriminating effects, including in her private environment, more extensively than in relation to contributions about her private behaviour.

In addition, the Higher Regional Court was able to take note of the fact that the appellant had given her consent to the interview which was the subject of the article at issue. The contested decision rightly does not regard the report and the link to it as an insult, since it is not without reference to the point of reference solely to denigrate the person.

The Higher Regional Court has also included the time factor in its consideration and examined whether the retransmission of the contribution by attribution is still justified in view of the time that has elapsed, which can modify both the weight of the public interest and that of the impairment of fundamental rights (see, in accordance with the decision of the same day, PM No 83/2019). Ultimately, it considers that a claim for exclusion in the present case, on grounds which are not objectionable under constitutional law, is not at least not yet present. This takes sufficient account of the guarantees of the Charter of Fundamental Rights and does not reveal a fundamentally incorrect view of the significance and scope of the fundamental rights of the Union affected.

No referral to the ECJ

Iii. A referral to the European Court of Justice under Article 267(4) 3 TFEU is not required. The application of THE fundamental rights of the European Union to the present case does not raise questions of interpretation which are not clear in themselves or by the case-law of the European Court of Justice, taking into account, in addition to the case-law of the European Court of Human Rights (see Article 52(3) of the GRCh).

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Written by Marian Härtel

Marian Härtel ist spezialisiert auf die Rechtsgebiete Wettbewerbsrecht, Urheberrecht und IT/IP Recht und hat seinen Schwerpunkt im Bereich Computerspiele, Esport, Marketing und Streamer/Influencer. Er betreut Startups im Aufbau, begleitet diese bei sämtlichen Rechtsproblemen und unterstützt sie im Business Development.

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