No “right to be forgotten” for press archives

The 2nd Chamber of the First Senate of the Federal Constitutional Court did not accept for decision a constitutional complaint directed against the civil court’s rejection of an application for an injunction against an online press archive. In the online archive of a magazine, a report dating back more than 35 years could be found, which showed that the complainant was the son of a former mayor of a major German city. The complainant’s general right of personality is not violated by this; in particular, the required weighing of fundamental rights does not lead to a “right to be forgotten” here. The adverse effects on the complainant resulting from the accessibility of the report and the knowledge of his parentage do not have a significance that exceeds the fundamental interest of the press and the general public in the continued availability of press reports that have not been modified in terms of content.

Facts of the case:

The complainant is the son of the former mayor of a large city in southern Germany (term of office: late 1970s to mid-1980s) and practices as a partner in a law firm bearing his family name. In 1978, a news magazine distributed throughout Germany published a portrait article on the mayor at the time, which also revealed that the complainant was his son. The article can still be found in the magazine’s online archive. When entering the name of the complainant in the Internet search engine “Google”, a proof and a link to this report appeared on the fifth page of the list of Internet sites proven there. For this reason, the complainant, who does not want to be publicly associated as a son with the former mayor, unsuccessfully sued the magazine’s publisher to refrain from mentioning him by name in the report held up online.

The Board’s main considerations are:

(1) Insofar as the complainant relies on the fundamental right to informational self-determination, the protective content of this guarantee is not affected. As can be seen in particular from the most recent Senate case law on the so-called right to be forgotten, this special manifestation of the general right of personality protects against the specific threats posed by a non-transparent collection and linking of personal data that can no longer be traced or controlled by the data subjects, but not against the communication of personal information in the public communication process.

2 The complainant’s general right of personality is also not violated in its dimension of protection under the law of expression.

The general right to privacy protects the free development of the personality and, in particular, provides protection against personal reporting and dissemination of information that is likely to significantly impair the development of the personality. However, it does not guarantee the right to be perceived publicly in the way that suits one’s desires. Insofar as the publicly accessible storage of a report, in particular in online press archives, is at issue, its permissibility must be assessed on the basis of the principle of the permissibility of truthful reporting from the area of social privacy by weighing the opposing interests protected by fundamental rights at the time of the respective request for deletion. In particular, the interest of the press in keeping its permissibly published reports unchanged in the public domain and the general interest of the public in the continued availability of accurate information must be taken into account.

The challenged decisions satisfy these requirements. In addition to the continuing informational value of the archived article, which they justify in a comprehensible manner, they also recognize a general interest of the press in keeping its archives available to the public as completely and unchanged as possible. In doing so, they assume – without objection under constitutional law – that the complainant is not threatened with any significant negative consequences as a result of public knowledge of his relationship as a child to the former Lord Mayor. In this respect, they understandably assume that the personality impairments threatened by the availability of the report are not as severe as in the case of reporting on serious criminal acts or generally grossly disapproved behavior.

An effect of the report requiring the deletion or concealment of the personal data does not result in particular also because its proof appears in a name search by Internet search engines only on position 40 to 50 and is thus not proven with priority. Therefore, it is not recognizable that persons who do not conduct intensive research would be drawn to the report, and thus to the child relationship with the former mayor, in a manner that violates personal rights.

The impediments to self-determined personality development asserted by the complainant due to knowledge of his father’s formerly prominent social and political position also do not lead to any other result. It is true that this aspect may have an independent relevance to the personality of the children of prominent persons. However, even in this respect, the general right of personality does not guarantee a self-definition determined unilaterally by the persons concerned.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.