Content Regulation / Censorship, Defamation / Reputation, Political Expression
The Case of Sarawak Report and Malaysia Insider
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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.
On January 21, 2010, the Norddeutscher Rundfunk (NDR), a German broadcasting corporation aired a segment of the TV show Panorama titled “Dismissal: the dirty practices of employers”. It featured an interview with the complainant in her capacity as CEO of a company. The subject of the interview was a case in which a dismissed employee accused her of unfair treatment after he had tried to establish a workers’ council in her company. The NDR later uploaded a transcript of the broadcast under the title “The dirty practices of employers” to its website.
When the complainant’s name was typed into Google, the link to this content was displayed among the top search results. After Google refused the complainant’s request to remove the link from the search results, Mrs. B successfully lodged an action at the Regional Court to force Google to remove the link. The court, in an April 22 2016 decision, reasoned that since a substantial amount of time had passed since Mrs. B was interviewed, a period of six years, the information was no longer current and thus its prominent placement in the search results amounted to an infringement of her right of personality. Due to the passage of time, Mrs. B’s right to personality outweighed NDR’s right to freedom of press as well as Google’s right to freedom of occupation under Art. 12 Basic Law. The court noted specifically that the word “dirty” could be harmful as it was associated with a disingenuous character and could therefore not only impact the complainant’s professional life but also her personal life. The court ordered Google to de-reference the link and Google appealed.
On December 29, 2016, the Higher Regional Court refused to grant the injunctive relief sought by the complainant. In its reasoning, the Higher Regional Court stated that there was no impact on the complainant’s personal life because she gave the interview in her capacity as CEO. Therefore, it related to her social but not her private sphere. Also, the word “dirty” referred to the practices of employers and not to Mrs. B as a person. Moreover, she agreed to give the interview and therefore implicitly gave her consent to its dissemination. In conclusion, the court ruled that the right to freedom of press outweighed Mrs. B’s right of personality.
Mrs. B appealed to the Constitutional Court. With her constitutional complaint, Mrs. B claimed a violation of her general right of personality and her right to informational self-determination. She argued that the title displayed in the search results was misleading as she had never used any “dirty practices”. It also portrayed her in a negative light, which was capable of disparaging her in her private life. Moreover, the complainant asserted that the public no longer had a legitimate interest in this information due to the long period of time which had passed since the broadcast originally aired.
On November 11, 2019, the Constitutional Court ruled that the constitutional complaint against the Higher Regional Court’s decision was admissible but unfounded and therefore upheld the decision.
Firstly, the Federal Constitutional Court established that de-referencing used to fall under the former Data Protection Directive and is now governed by the General Data Protection Regulation (GDPR). Both constitute fully harmonized EU Law, meaning the relevant standard of review solely derives from EU fundamental rights. Thus, EU law takes precedence of application (Anwendungsvorrang) over the fundamental rights of the Basic Law. While this has been established before, the Court for the first time found that it can directly review the application of EU law by German courts and authorities on the basis of EU fundamental rights.
Secondly, the court held that fundamental rights of both the Basic Law and the EU Charter are not limited to protecting citizens vis-à-vis the state, but also apply in disputes under private law. Nevertheless, the review must strike a balance between the conflicting rights. In a constitutional complaint against a court decision, the Federal Constitutional Court is limited to reviewing whether the challenged decision sufficiently gave effect to the EU fundamental rights and reflected the required balancing.
In the case at hand, the Federal Constitutional Court held that the Higher Regional Court satisfied the requirement of balancing the conflicting rights as it appropriately considered the fundamental rights of the parties as well as relevant fundamental rights of third parties, specifically the freedom of expression on the part of the NDR as the publisher of the online contents in dispute.
Mrs. B. claimed a violation of her right to the free development of her personality guaranteed under the basic Law, thereby essentially referring to her fundamental rights to respect for private and family life and to the protection of personal data pursuant to Art. 7 and Art. 8 of the European Charter. The scope of protection thereunder is not limited to highly personal circumstances. Thus, circumstances concerning a person’s professional life can also fall under the protection of Art. 7 and Art. 8 of the Charter. The fact that Mrs. B. referred to the fundamental rights of the Basic Law and not the Charter was immaterial to her legal standing. A failure to cite the correct legal provisions did not render the constitutional complaint inadmissible as long as the asserted rights violation was sufficiently substantiated. Nevertheless, her constitutional complaint was unsuccessful on the merits.
On the part of the search engine operator, the Higher Regional Court had to take into account its freedom to conduct a business under Art. 16 of the Charter. In relation to disseminating search results the search engine operator cannot invoke the right to freedom of expression under Art. 11 of the Charter. However, the fundamental rights of third parties directly affected by the legal dispute must also be taken into account. In the present case, this especially concerns the freedom of expression on the part of the NDR pursuant to Art. 11 of the Charter. A prohibition seeking to restrict the dissemination of an online publication for content-related reasons, such as the NDR’s transcript of the broadcast, effectively excludes it from being able to use the platform for disseminating its publication. Accordingly, it was not justified to prohibit a search engine operator from disseminating information, if that constituted an infringement of fundamental rights of a third party.
The Court held that Google’s mere economic interests as such cannot outweigh a limitation of Mrs. B’s fundamental rights. But because the NDR’s right to freedom of expression as well as the public’s interest in receiving information, must also be taken into account, the rights must be balanced equally. What also had to be considered in balancing the opposing rights was “the right to be forgotten” pursuant to Art. 17 GDPR, thus the passage of time between the original publication and its listing in search results was relevant, but insufficient in the present case.
After its general findings, the Court went on to evaluate the Higher Regional Court’s decision to reject the complainant’s request to de-reference the NDR transcript. It found that the balancing undertaken was not objectionable in general. Specifically, the Federal Constitutional Court agreed with the Higher Regional Court’s consideration that the complainant agreed to the interview featured in the contested broadcast, as well as its assumption that the broadcast did not qualify as calumny, as Mrs. B.’s portrayal is not without any connection to the factual subject matter.
However, the Court criticized the conclusion of the Higher Regional Court that Mrs. B was only affected in her social sphere. The Higher Regional Court held that the NDR broadcast did not relate to Mrs. B.’s private life but to her professional conduct which is why a continuing public interest in this information can be justified. The Federal Constitutional Court on the other hand stated that a clear distinction between social sphere and private sphere is almost impossible due to the possibilities to retrieve and combine information via online searches based on a person’s name.
In conclusion, 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 Charter and Google’s freedom to conduct a business under Art. 16 of the Charter. In particular, it affirmed the Higher Court’s consideration 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 NDR and the public’s interest in this information pursuant to Art. 11 of the Charter. The Higher Regional Court’s decision was upheld, and therefore Mrs. B’s constitutional complaint was unsuccessful.
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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.
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