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the challenged decision was rendered, Data Protection Directive 95/46/EC was in force. This directive obliged Member States to protect the right to privacy of natural persons with respect to the processing of personal data. On 25 May 2018, the directive was replaced with the General Data Protection Regulation (Regulation [EU] 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, OJ L 119 of 4 May 2016, p. 1; hereinafter: GDPR). In Art. 17, the General Data Protection Regulation contains a right to erasure, which is also referred to as the “right to be forgotten” in brackets. II. Statements concerning the constitutional complaint were submitted by the Federal Government, the Federal Court of Justice (Bundesgerichtshof), the Federal Commissioner for Data Protection and Freedom of Information (Bundesbeauftragte für den Datenschutz und die Informationsfreiheit), the Hamburg Commissioner for Data Protection and Freedom of Information (Hamburgische Beauftragte für Datenschutz und Informationsfreiheit) and Google LLC as the defendant as well as the NDR broadcasting corporation. […] 19 20-28 B. The constitutional complaint is admissible. 29 I. […] 30-31 II. The complainant has standing to bring a constitutional complaint. It is true that the fundamental rights of the Basic Law are not applicable in this case given that the legal dispute in the initial proceedings concerns a matter that is fully harmonised under EU law. However, the complainant can invoke the fundamental rights of the Charter of Fundamental Rights of the European Union. In the constellation under review here, the application of the Charter falls within the jurisdiction of the Federal Constitutional Court. 32 1. As the legal provisions applicable to this legal dispute are fully harmonised under EU law, the Charter of Fundamental Rights of the European Union (hereinafter: the Charter) is in principle the sole standard of review in this case. 33 a) The complainant’s claim for dereferencing pursued in the ordinary court proceedings is governed by data protection law, which is comprehensively harmonised under EU law. This holds true with regard to both the law that was applicable at the time of 34 5/36

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The Case of Mrs. B

Case Law

Country

Germany

Country Location

Latitude: 51.168768345617636

Longitude: 10.094236493110516

Country Location (linked Case Law): Germany

Decision Date: Nov 6, 2019

Case Status: Closed

Case Outcome (Procedural)

Admissible
Affirmed Lower Court

Case Outcome (Disposition)

Judgment in Favor of Defendant/ Acquittal
Law or Action Upheld

Keywords

Content Regulation / Censorship
Defamation / Reputation
Right to be Forgotten

Judicial Body: Constitutional Court

Court Name: Federal Constitutional Court of Germany

Case Number: 1 BvR 276/17

Case Summary: The Federal Constitutional Court of Germany held that the Higher Regional Court properly balanced the rights of the complainant, Google and the German broadcaster NDR when it rejected the claimant’s request to have a six-year old article about her de-referenced. In 2010, the complainant, Mrs. B, gave an interview to NDR which was featured in a segment of its TV show Panorama titled “Dismissal: the dirty practices of employers”. The NDR later uploaded a transcript of the segment to its website which was displayed among the top search results when the complainant’s name was typed into Google. Mrs. B. brought an action to remove the link after Google refused her request to de-reference the URL from the results. The Federal Constitutional Court did not object to the Higher Regional Court’s balancing of Mrs. B.’s right to the free development of her personality pursuant to Art. 7 and Art. 8 of the European Charter and Google’s freedom to conduct a business under Art. 16 of the Charter. The Court further considered the substantial amount of time that had passed, but ultimately found that the fundamental rights of third parties directly affected by the legal dispute had to be taken into account, namely the freedom of expression of the broadcaster and the public’s interest in this information pursuant to Art. 11 of the Charter.

Case Significance: Although the Court ruled that a search engine can’t invoke the right to freedom of expression under Article 11 of the European Charter in desseminating search results, it went on to consider the fundamental rights of third parties. In this case the Court said that a prohibition on disseminating information would infringe upon the NDR’s right to freedom of expression as well as the general public’s interest in obtaining this information.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Related Caselaw (self)

Google Spain SL v. Agencia Española de Protección de Datos

Source URL: Global Freedom of Expression

Collection

Columbia

Date Updated: Jul 3, 2024

Primary Documents

Federal Constitutional Court Judgment (English)
English
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CYRILLA: Global Digital Rights Law

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The Case of Mrs. B

Primary Documents

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