Der Spiegel – Court Ruling (Germany, 2019)

In 1982, the complainant was convicted of murder. The magazine DER SPIEGEL published three articles identifying the complainant by name. Later, it uploaded the articles to the magazine’s online archive where they were freely available to everyone. When the complainant’s name is entered in any search engine, these articles are listed among the top search results. In 2009, the complainant asked the magazine to remove the articles, and following the latter’s rejection he referred to the German Supreme Court (Bundesgerichtshof - BGH). The Court rejected the action on the grounds that the public interest and the magazine’s right to freedom of expression outweigh the complainant’s interest in protection of his personality. The complainant then referred to the German Constitutional Court raising the issue of the protection of fundamental rights between private actors. The German Constitutional Court decided that the fundamental rights of the Basic Law (Grundgesetz - GG) constitute the ground in this legal dispute, which falls within the field of application of EU law. However, the dissemination of press articles is covered by the media privilege, for which EU law grants Member States leeway to regulate. Therefore, the matter at stake is not determined by EU law in its entirety. The conflicting fundamental rights must be balanced against one another and the internet communication should be taken into consideration. The Court ruled that 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. [...] The balancing must consider the guarantees of freedom of expression and freedom of the press, which are restricted by limiting media reporting to anonymised information. The Court determined three criteria to be considered for the balancing test: * The lawfulness of the initial publication; * The extent to which the time passed sinc