New laws of forgetting – The German Constitutional Court on the right to be forgotten

1. Introduction

Empirical research has shown that the processes of human remembering and forgetting are subject to a number of laws: Neurosciences prove that forgetfulness is related to the gradual decline of brain synapses, psychology indicates that memory is deeply influenced by emotional affection, and cultural studies argue that oblivion is fundamentally subject to broad social and political changes.

Roughly five years ago the European Court of Justice (CJEU) added another law to these processes of remembering and forgetting: data protection law. Bringing into being what would become known as the right to be forgotten (rtbf), the Court in Google Spain SL ruled that the European Data Protection Directive equipped individuals with a right to have their personal data delinked from search engines or deleted completely. Last Wednesday the rtbf was introduced a new institutional stepparent: the German Federal Constitutional Court (GCC). Delivering judgments on two constitutional complaints – faithful to the GCC’s titling, we will call them RTBF I and RTBF II -, the Court not only ushered in a new phase of European judicial cooperation, but also provided new interpretations for the rtbf which lead to several conflicts with the CJEU.

After briefly sketching the GCC’s new conception of multilevel EU fundamental rights protection, I illuminate the two major inconsistencies vis-à-vis CJEU-interpreted European data protection the judgments lead to. In conclusion, I give a short outlook on potential future developments.

2. The Big Bang: A new configuration of EU multilevel fundamental rights adjudication

Arguably the biggest news emerging from the cases concerns the GCC’s new positioning in the system of EU multilevel fundamental rights adjudication. In RTBF II the GCC for the first time in its history directly applied the Charter of Fundamental Rights (CFR).

In line with its previous Solange-jurisprudence, the GCC first confirmed that German Grundgesetz rights were not applicable whenever the material legal situation at hand was fully determined by (secondary) European Union law. As the German Constitution gives the GCC jurisdiction only for Grundgesetz rights, it was therefore imaginable that the Court would declare itself incompetent ratione materiae and dismiss the complaint. In this scenario the GCC would have fully entrusted EU fundamental rights enforcement on lower courts, relying on their ability (and willingness) to resolve CFR interpretation issues by way of the CJEU’s preliminary reference mechanism pursuant to Art. 267 TFEU. Arguing that this configuration would a) undermine the GCC’s own institutional mandate to hold substantive jurisdictional competence for fundamental rights issues and b) misinterpret the CJEU’s role as an “advisory” institution tasked with the clarification of general questions of interpretation rather than the single case’s resolution, the GCC however decided not to follow this path and instead proceeded with interpreting and applying the pertinent Charter rights itself. It thus joins the ranks of other European constitutional courts – most recently that of Italy – in making the interpretation of CFR fundamental rights “their own business”. The practical consequences of this reconfiguration, most notably the question if lower courts can now abstain from referring CFR issues to the CJEU as the GCC would take on their role as court of last instance under Article 267 (3) TFEU, will only become clear in future cases.

The judgments not only brought these remarkable institutional developments, but furthermore substantial novelties for the rtbf and data protection more broadly. Here, specifically two issues call for attention: 1) The GCC’s considerations concerning the exemptions from data protection duties for data processing carried out for ‘journalistic purposes’ in RTBF II (also known and hereinafter referred to as the media privilege) and 2) its normative recalibration of the rtbf in RTBF I. As we will see, both developments are bound to provoke conflict with the CJEU’s own conceptualization of the rtbf.

3. RTBF II: ambiguities of data protection’s media privilege

RTBF II concerned the case of a company executive who in a TV report was accused of using “nasty” tricks to dismiss unruly staff members. As a textual transcript of the interview was archived on the TV station’s webpage, a simple Google search for the executive’s name would still direct people to what she deemed libelous and illegally reputation-damaging material. Having failed with her takedown request before the civil courts, the claimant now asked the GCC to pronounce that the further indexing of the material violated her fundamental rights and that the material therefore needed to be delisted from Google’s search results.

One of the major issues of RTBF II concerned the scope of the so-called media privilege and specifically the possibility of applying it to search engine providers. The media privilege in Article 9 Directive 95/46/EC (now Article 85 Regulation (EU) 2016/679), stipulates that legal exemptions and derogations must be put in place to where necessary to reconcile data controllers’ duties under data protection law with their potential rights to freedom of expression when processing data for journalistic purposes. The European provisions do not solve these conflicts themselves, but indeed request the Member States to establish adequate legal solutions on the national level. Crucially, the applicability of the media privilege clause would thus have withdrawn the dispute from the exclusive scope of European law and rendered it subject to national constitutional standards.

The CJEU in Google Spain SL had already judged on this issue. Finding that search engines did not operate “solely for journalistic purposes”, even if their action consisted in making available third party journalistic content, search engines were excluded from falling under the scope of national media privilege (Google Spain para. 86). Rights to free speech and freedom of press were thus considered irrelevant and specific emphasis put on the fact that the legality of providing journalistic content online could not prejudice the legality of the search engine’s operations (para. 82-84, 86-87). This line of interpretation was quietly confirmed in Google LLC, and further corroborated in GC and others, where the Court, despite an explicit question in this regard from the referring French Conseil d’État, did not even consider the application of the media privilege to search engine operators.

The GCC payed legal lip service to this interpretation and formally rejected the pertinence of the media privilege for search engine intermediaries. However, as could be predicted by the 2014 commentary on Google Spain of one of the sitting GCC judges, which heavily criticized the CJEU’s approach and specifically opposed the narrow definition of the media privilege, its substantial argument moved into a remarkably different direction: Noting that delisting news publications from search platforms ultimately always restricts content creators’ ability to spread their opinions, the GCC held that the delisting inevitably interfered with the content providers’ rights to freedom of expression. These would therefore need to be included in the balancing test. Going beyond that, the GCC furthermore held that the evaluation of the legality of the online publication would under regular circumstances also prejudice the legality of the search engine indexing. If making the content available was legal, the indexing of same content on an online search engine would therefore regularly be legal too.

This argumentation leads, firstly, to the internal contradiction that search engine operations are excluded from the media privilege while their legal evaluation not only relies on their effects for the rights of media institutions, but in fact is largely prejudiced by the scope of these rights itself. The judgment stirs up even more conflict as the GCC’s findings do not concern the national level, but indeed claim to be authoritative interpretations of EU law and EU fundamental rights. Specifically for this last reason, the judgment most likely will necessitate further clarifications on these points on the part of the CJEU. It remains to be seen if the European Court will hold on to its marked distinction between the assessment of claims against content providers and those against search engine operators or accept the GCC’s view that rtbf claims against search engine operators cannot be disentangled from their secondary effects for media rights holders.

4. RTBF I: a new normative grounding for the right to be forgotten

The GCC’s findings in RTBF I seem to provoke even more fault lines with regard to the existing CJEU jurisprudence however.

RTBF I concerned the case of A., who in 1982 was convicted of murder on a transatlantic yacht journey which attracted heavy media coverage. Released from prison in 2002, A. was made aware that news reports detailing his story were still available in the online archives of a large German news journal. Since 2009, A. had therefore been taking civil action to attain the reports’ deletion from the journal’s online archives. The GCC was now seized to decide if the ultimate dismissal of A.’s request through the Federal Court of Justice (BGH) violated his fundamental rights.

As the controversy here concerned the rights and duties of an original content provider, the media privilege was clearly pertinent, and the case therefore to be judged on the basis of German Grundgesetz fundamental rights. Freed from European restrictions, the GCC did not limit itself to simply striking a nation-specific balance between the fundamental rights of data subject A. (right to protection of personal data) and those of the data processing news journal (free speech, freedom of press), but instead shifted the conflict of rights altogether.

Different from the CJEU which in data protection cases consistently refers to the individual’s right to control over his/her data, according to the GCC the notion of control is inappropriate to assess the deletion of original media content. Rather media coverage on an identifiable individual necessarily needed to be seen as a multipolar process of societal communication, in which all the communicating parties’ interests (individual, media, audience) had to be taken into account in equal measure ab origine. Taking individual control as the standard of review would mask out the complexity of this clash of interests and unduly privilege the individual with a legal prerogative to determine the fate of “his or her” information. The GCC thus rejects the CJEU’s conceptualization of the rtbf as a fundamentally individual-controlled claim right vesting the individual with the power to demand the erasure of personal information as a matter of principle – albeit subject to specific exceptions. According to the GCC, the individual’s position was more aptly covered by the general right of personality which protects individuals from media coverage overly limiting their personal development as a free and autonomous individuality. This also positions the rtbf much closer to the laws of slander and reputation so far absent from European data protection discourse.

The GCC’s conceptualizations clearly stand in contrast to Google Spain, Google LLC and GC and others which not only see individual data control as the rtbf’s underlying normative principle, but also derive from this that the individual’s claim to erasure must under normal conditions prevail over third party interests and has to step back only exceptionally where there is a heightened public interest in the information. Specifically concerning this last stance on the general priority of individuals’ data rights opposite to the legal positions of media institutions and the general audience, it seems inevitable that the CJEU clarifies to which standards future cases will be held.

5. Conclusion

In its judgments the GCC presents a coherent system for EU multilevel fundamental rights adjudication and enriches the discourse on the right to be forgotten with much-needed perspectives concerning the broader normative principles at stake. At the same time, however, the two decisions clearly illustrate how easily this new system of integrated fundamental rights adjudication can lead to legal inconsistencies. One solution for this seems to be for the GCC to readily make use of the preliminary reference mechanism. If not, the GCC’s new vocation to apply CFR rights directly might lead to a situation where European courts talk about each other, but not with each other.