The Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) had to deal with a to deal with a constitutional complaint that was directed against a decision of the civil law decision of the Federal Court of Justice (BGH). The BGH dismissed the complainant's action against the provision of press reports dating back more than 30 years in the past in an online archive, in which the complainant's criminal record had been in which the complainant's criminal conviction for murder was reported by name. murder.
What had happened?
In 1982, the complainant was sentenced to life imprisonment for sentenced to life imprisonment for murder and attempted murder. sentence. He was released from prison in 2002 after serving his sentence.
The news magazine DER SPIEGEL published three articles in three articles about the named complainant in 1982 and 1983. complainant and since 1999 has made the articles available in its own online archive free of charge and without any access barriers. When entering the name of the the complainant's name in a common Internet search engine, the articles are top position.
Since 2009, the complainant has tried to oblige the DER SPIEGEL to remove the articles and refrain from publishing them in the future. to refrain from publishing them in the future. After success in the first and After success at first and second instance, the BGH overturned the judgement of the Higher Regional Court, altered the judgement of the Regional Court and dismissed the action. Essentially the BGH argued that the general right of personality does not confer an right to no longer be confronted with the misconduct in public at all. the misconduct in public at all.
What was the decision of the BVerfG?
The BVerfG ruled in favour of the complainant and considered his and considered his constitutional complaint to be well-founded. The complainant complainant's general right of personality has been violated by the challenged right of personality (Article 2.1 in conjunction with Article 1.1 of the Basic Law). In terms of procedure, the BVerfG referred the legal dispute back to the Federal Supreme Court so that it could the Federal Supreme Court to issue a decision taking into account the BVerfG's ruling.
Weighing up the right of personality and the freedom of opinion and the press
The BVerfG rightly points out that the complainant's general right of personality of the complainant under Article 2.1 in conjunction with Article 1.1 of the Basic Law. Article 1.1 of the Basic Law with the defendant's freedom of opinion and freedom of the press under Article 5.1. (1) sentence 1 and 2 of the Basic Law.
The general right of personality protects against the from the dissemination of reports that disparage the reputation of the person in a way that endangers the development of personality.
The BVerfG emphasised that the significance of the time of time of publication for the constitutional assessment of press press reports on criminal offences was not new. Due to today's conditions of information technology and the dissemination of information information through the internet, the aspect of time takes on a new legal dimension.
The press, on the other hand, has a right to report on crimes and criminals. Essential for the balancing of interests and thus for the for the respective claim to protection is the type, extent, dissemination and the time lapse of the reporting.
However, the BVerfG also appreciated the content of the freedom of the press against the background of the development of information technology. The provision of reports on the Internet is of paramount importance for the public. and retrievability at any time, is of paramount importance for the public interest in information.
Weighing-up criteria, possible solutions and criticism of the BGH decision
The BVerfG clarified that the person concerned is not entitled unlimited protection of his or her general right of personality. right of personality. A publisher may assume that a report report that was initially lawfully published can also be placed in an online archive and archive and made available to the public until a qualified complaint is made by those by the persons concerned.
The decisive factor would be whether and to what extent
- the the dissemination of past reports may affect the private life and the The dissemination of past reports may interfere with the private life and development opportunities of the person concerned as a whole,
- the has contributed in the meantime to keeping the interest in the events or their in the events or in their person; or
- the report about the person concerned is widely distributed; the fact that an The fact that information is somehow accessible on the internet is not the only decisive factor.
The publishers concerned must strike a balance between their information interests and the right of personality of the of the person concerned. The aim should be to achieve a balance that allows unhindered access to the original text as far as possible, but which limits this access sufficiently but sufficiently limited on a case-by-case basis. The following measures would be conceivable:
- Complete Deletion of the contribution; however, this measure should only be justified in exceptional cases. justified,
- Relocation The reports of the affected persons in an area protected from search engine crawlers, from search engine crawlers; however, this would lead to a de facto non-accessibility of the article.
- Creation a second version of the report, which only results in a basic hit without the name of the person concerned. This hit could then be used to redirect the interested user could be redirected to the original version of the file.
The The BVerfG criticises the decision of the Federal Supreme Court for not having sufficiently the complainant's situation. The BGH should have should have considered graduated intermediate solutions in order to avoid the the complainant's right of personality in the area of conflict with the publisher's interests of the publishing house.
What is to be done for those affected?
The BVerfG has made one thing clear: Affected persons do not have a right to deletion just because only because reports about them are already very old.
Affected should think twice about keeping the memory of the reported events alive by events by making public announcements.
Affected should be able to explain whether and to what extent the reports are currently burdening them. burden them. This could be, for example, concrete impairments in the in finding a place to live, a job or a partner.
In In many cases, it should initially be sufficient for the online provider to find a solution. solution in which the report in question is not immediately found when using a search engine is not immediately found. The broad masses are likely to lose the lack of an immediate search hit, similar to the case with this is likely to be the case with negative comments in social media.
Judgment of the Federal Constitutional Court of 06.11.2019, Ref. 1 BvR 16/13
Previous instance: Federal Court of Justice, judgement of 13.11.2012, file no. VI ZR 330/11
Sources: Ruling of the BVerfG of 06.11.2019, Ref. 1 BvR 16/13
GoldbergUllrich Attorneys at Law 2019
Julius Oberste-Dommes LL.M. (Information Law)
Lawyer and
Specialist lawyer for information technology law
