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Germany: Constitutional Court publishes right to be forgotten II decision

The German Federal Constitutional Court ('the Constitutional Court') published, on 27 November 2019, a decision ('the Decision') on the right to be forgotten as provided under Article 17 of the General Data Protection Regulation (Regulation (EU) 2016/679) ('GDPR') in a case dealing with a television interview that portrayed the claimant negatively and which can be found in the internet via search engines. In particular, the Constitutional Court found that when reviewing claims for injunctive relief against search engine operators, the balancing of interest test must take into account the freedom of a search engine operator to conduct a business under Article 16 of the European Charter of Fundamental Rights ('the Charter'). Furthermore, the Constitutional Court noted that the search engine operator cannot invoke the right to freedom of expression under Article 11 of the Charter in relation to the search results disseminated by its search engine.

In addition, the Constitutional Court stated that the fundamental rights of third parties directly affected by the legal dispute must be taken into account, which are, in the case at hand, the internet users' interest in receiving information and the freedom of expression on the part of the television broadcasting corporation. In addition, the Constituional Court found that prohibiting the search engine operator from disseminating contents published by third parties would exclude the third party from an important platform for disseminating its publication. Finally, the Constituional Court found that these consequences would not be merely unintended side effects of the prohibition but that the decision to prohibit the listing of the relevant contribution in search results would be directly tied to the statements contained therein, and thus to the exercise of freedom of expression, given that the prohibition specifically seeks to restrict the dissemination of an online publication for content-related reasons.

You can read the press release here and a summary by the Hamburg State Commissioner for Data Protection and Freedom of Information ('HmbBfDI'), only available in German, here.