Key facts of the case:

The plaintiff, a man who was convicted for murder in 1982 and released in 2002, lodged a constitutional complaint against a judgment of the Federal Court of Justice (Bundesgerichtshof). In November 2012, the Federal Court of Justice had rejected the plaintiff’s claim to limit the availability of personal information in media coverage of the murder case that was accessible free of charge at the online archive of the newsmagazine DER SPIEGEL and was, thus, also ranking high on internet search engines when searching for the name of the plaintiff. The Federal Court of Justice had argued that the plaintiff’s interest to protect his privacy has to stand behind the news magazine’s right to free speech and its interest to inform the public.

Key legal question:

The Federal Constitutional Court considered the relation between the plaintiff’s general right of personality on the one hand and the news magazine’s right to freedom of speech and freedom of press on the other hand in the context of internet communication. The key question raised by the court was if online press archives may be required to take measures to protect an individual’s  „right to be forgotten“. As the issue at stake falls into the scope of application of EU law, namely Data Protection Directive 95/46/EC, the Court also clarified the applicable standard of review in regard to cases concerning matters of ordinary legislation that are not fully harmonised under EU law and thus allow for different legislative design at Member State level.

Outcome of the case:

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 light 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 operator of an online archive makes use of means to limit 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. As the Federal Court of Justice had failed to meet these requirements the Federal Constitutional Court suspended the challenged decision, holding that it violated the plaintiff’s right of personality, and referred the case back to the Federal Court of Justice.

Even though the issues at stake fell into the scope of application of EU law, the Federal Constitutional Court, pointing to the Article 9 of the EU Data Protection Directive  („media privilege“ which provides for domestic leeway to regulate the processing personal data for journalistic, artistic or literary purposes), argued that it concerned a matter of legislation that is not fully harmonised under EU law and thus allows for different legislative designs at Member State level. Therefore, the Court held that it will primarily rely on the fundamental rights of the Basic Law (Grundgesetz) as the standard for reviewing the interpretation of the relevant legislation. This follows from the Court’s finding that where EU law provides for regulatory leeway, 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. Accordingly, 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.