Domestic fundamental rights remain the primary standard of review for the Federal Constitutional Court, even in cases where EU fundamental rights would also be applicable***Online press archives may be required to take measures protecting against the indefinite dissemination via search engines of news publications containing information relating to an individual

Press Release No. 83/2019 of 27 November 2019

Order of 6 November 2019 - 1 BvR 16/13 - Right to be forgotten I

The order published today in the proceedings “Right to be forgotten I”, which supplements the order issued on the same day in the parallel proceedings “Right to be forgotten II” (cf. Press Release No. 84/2019), concerns a legal dispute about a matter that is within the scope of application of EU law, but that allows for different legislative designs at Member State level. In the present proceedings, the First Senate of the Federal Constitutional Court therefore applied the fundamental rights enshrined in the Basic Law (Grundgesetz – GG) as its standard of review, granting a constitutional complaint challenging a judgment of the Federal Court of Justice (Bundesgerichtshof). In the challenged judgment, the Federal Court of Justice had rejected the complainant’s action seeking injunctive relief against the unrestricted availability in an online archive of press articles from more than 30 years ago; in the respective articles, which cover the complainant’s conviction for murder, the complainant is identified by name.

Before deciding on the merits of the specific case, the Federal Constitutional Court clarified the applicable standard of review in the context of EU law. With regard to cases concerning a matter of ordinary legislation that is not fully harmonised under EU law and thus allows for different legislative designs at Member State level, the Court held that it will primarily rely on the fundamental rights of the Basic Law as the standard for reviewing the interpretation of the relevant legislation, even though EU fundamental rights may also be applicable to the matter in question. This follows from the finding that where EU law affords leeway to design, it seeks to accommodate the diversity of fundamental rights regimes; and it rests on the presumption that the application of German fundamental rights simultaneously ensures the level of protection required by EU fundamental rights, which in this scenario set but outer limits. An additional review on the basis of EU fundamental rights is only necessary if there are specific and sufficient indications showing that the Basic Law does not afford adequate fundamental rights protection.

As regards the specific case at hand, the First Senate of the Federal Constitutional Court held that claims for protection against the dissemination of old press articles by means of an online archive must be reviewed based on a balancing of the conflicting fundamental rights interests; in view of the realities of Internet communication, time must be considered as a particularly weighty factor in this balancing (“right to be forgotten”). In this regard, it must be taken into account to what extent the media outlet operating the archive disposes of means to influence the dissemination of old press articles on the Internet in order to ensure protection of affected persons – especially regarding the listing of these articles in search engine results for the affected person’s name. Under constitutional law, such claims for protection are based on the general right of personality in its manifestation as a right protecing against statements concerning one’s person (äußerungsrechtliche Schutzdimension), which must be distinguished from the right to informational self-determination.

Facts of the case:

1. In 1982, the complainant was convicted of murder and sentenced to life imprisonment for having killed two persons by shooting them on board a yacht on the high seas in 1981. In 1982 and 1983, the magazine DER SPIEGEL ran three articles on the case in its print edition, which identified the complainant by name. In 1999, the Spiegel Online GmbH – the defendant in the ordinary court proceedings – uploaded the articles to the magazine’s online archive, where the articles are accessible free of charge and without any restrictions. When the complainant’s name is entered into one of the common Internet search engines, the articles in question are listed among the top search results.

In 2002, the complainant was released from prison. In 2009, after learning that the articles were available online, he sent a cease-and-desist letter to the defendant without success. He subsequently lodged an action seeking to enjoin the defendant from disseminating any information on the crime case containing the complainant’s last name. The Federal Court of Justice rejected the action. In its reasoning, the Federal Court of Justice stated that the interest of the general public in receiving information, an interest that is promoted by the defendant here, and the defendant’s right to freedom of expression outweigh the complainant’s interest in protection of his personality. The court held that the public has a recognised interest in receiving information on significant events of contemporary history – such as the aforementioned murder trial, which is inextricably linked to the complainant’s name and person – by accessing the unaltered original news reports.

2. With his constitutional complaint, the complainant claims a violation of his general right of personality. The complainant submits that he himself did nothing to reignite public attention regarding his case and that he wishes, in his present life situation, to cultivate social relationships without the burden of being associated with the crime. Yet the current reality is that whenever people enter his name into an online search engine, as is commonplace today, they find the archived articles at the top of the search results. The complainant claims that this severely impairs the free development of his personality. The complainant does not contest that the murder trial from 30 years ago constitutes a significant event of contemporary history; he argues, however, that this does not necessarily mean that the public continues to have an interest in knowing his name even after so much time has passed.

Key considerations of the Senate:

I. The proceedings provided an occasion for the Federal Constitutional Court to specify the standard of constitutional court review regarding the Basic Law’s fundamental rights in the context of EU law, and to clarify the relationship to EU fundamental rights that might also be applicable.

1. The Federal Constitutional Court reviews domestic law and its application on the basis of the fundamental rights enshrined in the Basic Law; in principle, this standard also prevails if a domestic legal provision falls within the scope of application of EU law but is not determined in its entirety by EU law, as is the case here. This holds true even where the Charter of Fundamental Rights of the European Union, pursuant to its Art. 51(1) first sentence, is also applicable in the individual case.

a) Reviewing acts of German public authority on the basis of the Constitution is in line with the general role of the Federal Constitutional Court as guardian of the Constitution; it is also in keeping with Art. 23(1) of the Basic Law (Grundgesetz – GG), which provides for Germany’s participation in the European Union that is committed to federal principles and the principle of subsidiarity. This approach is also commensurate with the European Treaties and the case-law of the Court of Justice of the European Union (CJEU). In their preambles, both the Treaty on European Union (TEU) and the Charter of Fundamental Rights recognise the diversity of cultures and traditions in Europe; similarly, the provisions of the Charter affirm respect for the diversity of fundamental rights frameworks. Accordingly, Art. 5(3) TEU enshrines the principle of subsidiarity as a basic principle of the European Union, which Art. 51(1) first sentence of the Charter expressly reiterates for the purposes of fundamental rights protection.

b) Relying on the fundamental rights enshrined in the Basic Law as the primary standard of review is informed by the fact that EU law, where it affords Member States leeway to design, is generally not aimed at uniformity in fundamental rights protection; it equally rests on the presumption that the application of German fundamental rights simultaneously ensures the level of protection required under EU law, which in this scenario seeks to accommodate diversity.

aa) If the EU legislator affords the Member States leeway to design in the implementation of EU law, it can be presumed that this also extends to the relevant fundamental rights protection. Drawing on the CJEU’s case-law, it can generally be assumed in this regard that the level of protection under EU fundamental rights sets certain outer limits while also seeking to accommodate fundamental rights diversity. The extent to which there is scope for the Member States to embrace different values is essentially determined by the relevant provisions of ordinary EU legislation. It is also possible that the provisions of ordinary EU legislation set out specific fundamental rights requirements limiting the Member State’s leeway to design. In this regard, the relation between ordinary legislation and fundamental rights is less static under EU law than is the case under the German Constitution.

bb) Where ordinary EU legislation must be regarded as seeking to accommodate diversity in fundamental rights protection, the Federal Constitutional Court can draw on the presumption that constitutional review on the basis of German fundamental rights generally ensures the level of protection required under the Charter as interpreted in the case-law of the CJEU.

This presumption arises from overarching ties between the Basic Law and the Charter shaped by a common European fundamental rights tradition, which is notably rooted in the European Convention on Human Rights. In keeping with this tradition, both the Charter and the fundamental rights of the Basic Law are interpreted in light of the Convention.

cc) The application of the Basic Law’s fundamental rights as the primary standard of review does not preclude that the EU Charter of Fundamental Rights also be taken into consideration. Rather, the fundamental rights of the Basic Law must be interpreted in light of the Charter. This approach disregards neither the autonomy of the Basic Law’s fundamental rights regime nor the fact that the interpretation of these fundamental rights is in part informed by Germany’s historical experiences and must take into account the specific structures of the legal order and the social realities in the Federal Republic of Germany. It cannot be assumed from the outset that the fundamental rights guarantees of the Basic Law and of the Charter are congruent in all respects. The significance of other sources of fundamental rights guarantees for interpreting the fundamental rights of the Basic Law can only be determined on a case-by-case basis; in particular, this assessment is contingent upon the status and contents of these interrelated legal norms as well as their relationship with each other. In this respect, an interpretation in light of the EU Charter may differ from an interpretation in light of the European Convention on Human Rights.

2. In principle, the fundamental rights of the Basic Law thus provide the sole standard of review in relation to domestic law, where the relevant domestic law implements EU legislation that leaves leeway to design. However, this principle does not apply without exception.

a) Firstly, even where ordinary EU legislation affords the Member States leeway to design, it may exceptionally contain stricter fundamental rights requirements. Secondly, it is possible to rebut the presumption that the fundamental rights of the Basic Law guarantee an adequate level of protection in cases where ordinary EU legislation seeks to accommodate fundamental rights diversity. Even though a substantial level of homogeneity can be found in fundamental rights guarantees deriving from the European Convention on Human Rights, the Member States have different fundamental rights traditions, shaped by their own history and social realities; this is especially true with regard to the reconciliation of conflicting fundamental rights and the justiciability of such conflicts. While the Charter may contribute to reconciling the guarantees deriving from these different traditions, it cannot, nor does it seek to, fully harmonise fundamental rights protection in Europe.

b) Constitutional review cannot rely solely on German fundamental rights as the applicable standard if there are specific and sufficient indications that the level of fundamental rights protection required under EU law might not be met.

aa) Indications for asserting that ordinary EU legislation exceptionally subjects the leeway to design afforded Member States to specific fundamental rights requirements must objectively derive from the wording and legislative context of the provisions in question. The mere fact that ordinary EU legislation calls for full respect of the Charter of Fundamental Rights or of certain individual provisions of the Charter does not by itself suffice to establish stricter fundamental rights requirements.

bb) The possibility of rebutting the presumption that the application of the Basic Law’s fundamental rights simultaneously ensures the level of fundamental rights protection required under EU law must also only be considered if there are specific and sufficient indications to this effect. If it can be ascertained that the CJEU recognises a specific fundamental rights standard that is not guaranteed to the same extent by German fundamental rights, this EU standard must be incorporated into the domestic standard of review. The same holds true if, in the individual case, the specific level of protection derives from rights guaranteed in the Charter that do not correspond to any guarantee recognised under the Basic Law.

c) To the extent that German fundamental rights exceptionally do not ensure the Charter’s level of protection, the respective rights of the Charter must be incorporated into the domestic standard of review. In the event that this gives rise to unresolved questions regarding the Charter’s interpretation, the Federal Constitutional Court will request a preliminary ruling from the CJEU pursuant to Art. 267(3) of the Treaty on the Functioning of the European Union (TFEU). In all other cases, it is for the Federal Constitutional Court to incorporate the EU fundamental rights, and give effect to them, in its review (cf. in this regard the order in proceedings 1 BvR 276/17, also published today with Press Release No. 84/2019).

3. In primarily relying on the fundamentals rights of the Basic Law as the applicable standard of review, the Federal Constitutional Court does not call into question the direct applicability of the Charter of Fundamental Rights within the scope set out in Art. 51 of the Charter. Accordingly, the ordinary courts may refer any questions on the interpretation of EU law arising in this context to the CJEU. This applies without prejudice to the obligation incumbent upon the ordinary courts to also give effect to the fundamental rights of the Basic Law where EU law affords Member States leeway to design.

4. Based on these considerations, the fundamental rights of the Basic Law provide the sole standard of review in the present proceedings. It is true that the underlying legal dispute, which must be decided on the basis of §§ 823, 1004 of the Civil Code (Bürgerliches Gesetzbuch – BGB), as applied accordingly, does fall within the field of application of EU law (namely former Data Protection Directive 95/46/EC, now replaced by the General Data Protection Regulation), However, the challenged dissemination of press articles is covered by the so-called media privilege, for which EU law grants Member States leeway to design. Therefore, the present proceedings do not concern a matter determined by EU law in its entirety. It is not ascertainable that the fundamental rights protection under the Basic Law does not reach the level of protection required under the Charter of Fundamental Rights.

II. On the merits, the constitutional complaint is successful.

1. The constitutional complaint concerns the protection of fundamental rights between private actors. In relations between private actors, fundamental rights have indirect horizontal effects (mittelbare Drittwirkung). Accordingly, a balancing is required between the conflicting fundamental rights.

a) On the part of the complainant, the balancing must take into account his general right of personality (Art. 2(1) in conjunction with Art. 1(1) GG) in its manifestation as a right protecting against statements concerning one’s person, whereas the right to informational self-determination, another manifestation of the right of personality, does not bear on the balancing in the present case.

In the manifestation relevant here, the general right of personality protects against media reporting and the dissemination of information related to one’s person, if these are capable of severely impairing the free development of one’s personality. It protects against the dissemination of media reports and information related to one’s person in the public sphere as a result of communication processes. In this context, risks to the free development of one’s personality primarily result from the type and contents of the publication itself. The protective contents of this right are not defined by exhaustive and distinct guarantees; rather they must by determined with a view to the specific need for protection in the individual case and the fundamental rights of third parties. The protection afforded by the general right of personality is thus flexible, with its relative nature resulting from the fact that a person must be viewed in the context of their social relationships. It follows that the right of personality does not confer upon the individual an exclusive right to determine the portrayal of their person in all respects. It does, however, aim to safeguard the basic conditions enabling the individual to develop and protect their individuality in self-determination.

This must be distinguished from the right to informational self-determination as a separate manifestation of the general right of personality. The right to informational self-determination may also bear on private law relations by way of indirect horizontal effects. It protects against third parties obtaining personal data of individuals and using it in opaque ways in order to frame the affected persons according to personal characteristics, types or profiles over which they have no control but which significantly bear on the free development of their personality and equal participation in society. In this context, the indirect effects of this right between private actors differ from the direct protection afforded against the state. Specifically, unlike the standards applicable vis-à-vis the state, the requirements and burden of justification cannot be determined in the abstract but are contingent upon a balancing to assess the need for protection in the various case constellations arising between private actors. As is the case with the right to determine the portrayal of one’s person, the right to informational self-determination does not confer upon the individual a general, let alone an unconditional right to self-determination regarding the use of their data. It does, however, allow the individual the possibility of influencing, in various ways, the context and manner in which their data is accessible to and can be used by others. Thus, it guarantees the individual substantial influence in deciding what information is attributed to their person.

b) On the part of the defendant in the ordinary court proceedings, the balancing must take into account the fundamental rights to freedom of expression and freedom of the press (Art. 5(1) and (2) GG). By contrast, the uploading of press articles to an online archive does not concern freedom of broadcasting. The dissemination of information is not automatically covered by freedom of broadcasting simply because it is carried out by means of electronic information and communication systems.

2. These conflicting fundamental rights must be balanced against one another, which first requires that the respective contents of their guarantee be determined. In this regard, consideration must be given to the realities of Internet communication.

a) In balancing freedom of the press against the protection of the right of personality, time has always been a relevant factor. With regard to media reporting on current crime cases, courts generally accord precedence to the interest in receiving information and, in principle, find it permissible that news articles identify the offender, at least in cases where a conviction has become final; at the same time, the applicable case-law has always emphasised that the legitimate interest in media reporting that identifies the offender diminishes the more time has passed since the crime was committed.

Yet, in the present day, the realities of information technology and the dissemination of information on the Internet attach a new legal dimension to the requirement that time be considered as a relevant contextual factor characterising information. In the past, information disseminated in print media and broadcasting was accessible to the public only for a limited period of time beyond which it was largely forgotten. Today, however, information – once it is digitalised and published online – remains available in the long term. The lingering effects of information through time are no longer limited to fleeting recollection in public discourse; rather, the information can be directly and permanently retrieved by everyone. At present, such information can be obtained at any time by complete strangers; it can become the subject of online discussion, be taken out of context and presented in a new narrative, and be combined with other information to create personality profiles, with name-related searches via search engines being widely used for this purpose.

b) In interpreting and applying the general right of personality, these circumstances must be taken into consideration. Freedom entails that one’s personal beliefs and behaviour are subject to development and change. This requires that the law allow the individual to exercise their freedom free from intimidation, affording them the chance to move on from errors and mistakes. Thus, the legal order must protect the individual against the risk of being constantly confronted in public with one’s past opinions, statements or actions, without any kind of restriction. Only when matters are allowed to stay in the past do individuals have a shot at a new beginning, to live their life freely. The possibility for matters to be forgotten forms part of the temporal dimension of freedom. This concept is figuratively referred to as the “right to be forgotten” [in German: “Recht auf Vergessen” or “Recht auf Vergessenwerden”].

It must be noted, however, that the general right of personality does not confer upon the individual a “right to be forgotten” in a strict sense, as it does not grant the affected person an exclusive right to decide which information about them is to be “forgotten”. It is not for the affected person to decide unilaterally which information about them is to be remembered as interesting, admirable, offensive or condemnable. Therefore, the general right of personality does not encompass a right to request that all information relating to one’s person that is disseminated through communication processes be deleted from the Internet.

c) As for the interests conflicting with the complainant’s rights, the balancing must give appropriate consideration to the protective guarantees of freedom of expression and freedom of the press. Limiting media reporting to anonymised information substantially restricts the public’s opportunities to receive information, and the right of the press to make its own decisions on what to report, and when, for how long, and in what manner to do so. Online press archives provide easy access to information and important resources for journalistic research and for research on contemporary history. Furthermore, they serve an important function for learning and education and for public debate in a democratic society.

3. Therefore, the following requirements apply to the balancing that must be undertaken by the ordinary courts.

a) If the initial publication of certain press articles was lawful, the responsible media outlet may in principle also upload these contents to an online archive. An obligation to take protective measures may arise only in the event that the affected person notifies the media outlet and specifically demonstrates a need for protection.

b) The extent to which the amount of time passed since the initial, lawful publication must be considered as a decisive factor in determining the need for protection depends notably on the effects and contents of the news articles in question; it is especially relevant whether and to what extent the articles impair the affected person’s private life and their opportunities for personal development. In addition to possible new contexts of the published articles and the affected person’s conduct since the initial publication, the specific circumstances framing the communication of the relevant information on the Internet are significant. The burden on the affected person also depends on the extent to which the information actually reaches a large audience, including whether it is featured prominently in the list of search results from online search engines.

c) In striking a balance between the conflicting interests, it must be borne in mind that the type of possible protective measures required of the responsible media outlet may vary, with different levels of protection corresponding to the changing relevance of information over time. The aim is to strike a balance that preserves unrestricted access to the original texts to the greatest extent possible, while also ensuring that where protection is merited in the individual case – especially in relation to name searches via search engines – sufficient limitations are put in place.

4. The challenged decision does not fully satisfy these requirements. In the present case, it would have been necessary to consider whether it was possible, and required, to impose an obligation on the media outlet sued before the ordinary courts to take reasonable precautions upon being notified by the complainant, to provide at least some protection against search engines retrieving the articles in question in the context of searches related to the complainant’s name, without unduly restricting the general retrievability and accessibility of the articles as such.