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Germany/ Federal Constitutional Court/ 1 BvR 276/17 („Right to be forgotten II“)

Anonymous plaintiff v. Higher Regional Court Celle (Oberlandesgericht Celle)

Deciding Body type:
National Court/Tribunal
Deciding Body:
Federal Constitutional Court
Decision date:

Key facts of the case:

The anonymous plaintiff legally challenged Google, requesting the deletion of a link to a written transcript of a television documentary report, sent in 2010 by the North German Broadcasting (Norddeutscher Rundfunk), which was listed by the search engine when searching for the name of the plaintiff. Given that the TV documentary was about „the nasty tricks of employers [when firing staff]“, the plaintiff complained that her private reputation was at stake. In April 2016 a regional court decided that Google should delist the contested link. Google appealed against this decision, and the Higher Regional Court Celle decided in December 2016 in favour of Google, declaring the plaintiff’s complaint as being unfounded as a „delisting“ of the link was neither justified by Section 35 (2) of the Federal Data Protection Act (Bundesdatenschutzgesetz) nor by Sections 823 and 1004 of the Civil Code (Bürgerliches Gesetzbuch), arguing that the plaintiff’s privacy was not violated and she had even given her consent to the relevant TV interview whereas a deletion of the link would significantly interfere with the freedom of press and information. The plaintiff then lodged a constitutional complaint with the Federal Constitutional Court against the decision of the Higher Regional Court, claiming that her general right of personality and her right to informational self-determination (Article 2 (1) of the Basic Law in conjunction with Article 1 (1) of the Basic Law) were violated.

Key legal question:

The Federal Constitutional Court decided if the Higher Regional Court had appropriately balanced the plaintiff’s right to privacy on the one hand and Google’s right to conduct business and the freedom of press and information of third parties being affected by a deletion of the contested link on the other hand. A key question decided was if the relevant standard to be applied for review by the Federal Constitutional Court were the fundamental rights of the German Basic Law or of the European Charter of Fundamental Rights. 

Outcome of the case:

Given that the legal dispute is governed by legislation that is fully harmonised under EU law (namely the Data Protection Directive 95/46/EC and the General Data Protection Regulation) the Court applied the Charter of Fundamental Rights as the relevant standard of review even though the plaintiff referred to fundamental rights as protected by the Basic Law. It was the first time that the Court reviewed the application of EU law by German authorities in light of the standards of the EU Fundamental Rights Charter. The Court argued that it is irrelevant that the plaintiff referred to the wrong legal norms as she had substantiated the matter. The Court noted that it had so far left the protection of EU fundamental rights to the lower courts cooperating with the CJEU but that in all these cases it was the validity of EU law which was at stake rather than its actual application. The Court argued that it could not withdraw from fundamental rights review in the present case as otherwise no legal remedies would have been available against a possible violation of EU fundamental rights by a German court.

Regarding the actual matter at stake the Court eventually decided that the constitutional complaint was unfounded. The Court held that the Higher Regional Court Celle had correctly balanced the fundamental rights to privacy and data protection of the plaintiff with Google’s right to conduct business and, more importantly, the right to freedom of opinion and information of the public broadcasting and it users. In the view of the Court the documentary reported on professional aspects of the plaintiff’s life which are, thus, of public interest and – nine years after its broadcasting – not yet protected by the right to be forgotten.