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5. Where affected persons request that search engine operators refrain from referencing and displaying links to certain online contents in the list of search results, the necessary balancing must take into account not only the right of personality of affected persons (Articles 7 and 8 of the Charter), but must also consider, in the context of search engine operators’ freedom to conduct a business (Article 16 of the Charter), the fundamental rights of the respective content provider as well as Internet users’ interest in obtaining information. Insofar as a prohibition of the display of certain search results is ordered on the basis of an examination of the specific contents of an online publication, and the content provider is thus deprived of an important platform for disseminating these contents that would otherwise be available to it, this also constitutes a restriction of the content provider’s freedom of expression. 2/36

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The Case of Mrs. B

Case Law

Country

Germany

Country Location

Latitud: 51.168768345617636

Longitud: 10.094236493110516

Country Location (vinculado Case Law): Germany

Decision Date: 6 nov 2019

Case Status: Cerrado

Case Outcome (Procedural)

Admissible
Affirmed Lower Court

Case Outcome (Disposition)

Judgment in Favor of Defendant
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

Google Spain SL v. Agencia Española de Protección de Datos

Source Name and URL: Global Freedom of Expression

Collection

Columbia

Date Updated: 3 jul 2024

Documentos primarios

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

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The Case of Mrs. B

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