NDR – Court Ruling (Germany, 2019)

The complainant sought injunctive relief against a search engine operator because the search engine’s list of results for searches of her name contained a link to the transcript of a TV broadcast that was uploaded to an online archive in 2010. In the document the complainant is identified by name and accused of unfair treatment of an employee. The Celle Higher Regional Court rejected her claim and then she referred to the Federal Constitutional Court. The Court decided for the first time that where EU fundamental rights take precedence over German fundamental rights, the Court itself can directly review, on the basis of EU fundamental rights, the application of EU law by German authorities. What is decisive here is that under current EU law there would otherwise be a gap in protection regarding the application of EU fundamental rights by the ordinary courts. The fundamental rights of both the Basic Law and the Charter are not limited to protecting citizens vis-à-vis the state, but also afford protection in disputes under private law. The conflicting fundamental rights must be balanced on an equal basis.https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2019/bvg19-084.html According to the Court, the balancing exercise here must take into account the fundamental right to private and family life as well as the fundamental right to the protection of personal data on the one hand and the freedom to conduct a business on the other hand. The fundamental rights of third parties directly affected must also be considered, including the freedom of expression of the broadcasting corporation and the internet users’ interest in receiving information. The search engine operator’s economic interests as such are in principle not sufficiently weighty to justify a limitation of the affected person’s right to protection. It is not for the individual to determine unilaterally what information may be disseminated about them in the course of public communication processes. Consideration must be given to the easy access to and the continuing availability of the information online and to the time passed between the original publication and its listing in search results. The Court noted that clear distinction between online information falling within the social and the private sphere is not more really possible anymore, so the complainant should expect negative effects of information regarding her professional conduct also on the private life.https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2019/bvg19-084.html