German constitutional judge expresses concerns about the “right to be forgotten” decision

Well meant, but possibly dangerous – that is the assessment of a highly regarded judge of Germany's Constitutional Court, Johannes Masing, about the recent judgement of the European Court of Justice (ECJ). Masing, in what is an unusually frank statement for a German Constitutional Court Judge on a decision by his EU colleagues warns against making private search engines private censors on the internet. The ECJ had confirmed a so-called right to be forgotten for EU citizens. The judgement delivered on May, 13, obliged Google to filter search results on notice by EU citizens who saw their privacy rights violated by the indexed content.

Masing in principle applauded that the EU judges have clearly confirmed that Google was subject to EU data protection law. Nevertheless the German constitutional judge has considerable concerns that although well-intended, the judgement would in fact bestow more power to large search engine providers. “Search engine providers put in charge to decide about deletion requests are made an arbitrator bestowed with a broad competency to make decisions about communication in the net”, Masing wrote. The judgement in fact could strengthen the already considerable power of the search engine providers, he wrote the high level points of his opinion, published on the Blog on Constitutional Matters.

Primacy of privacy over freedom of expression always?

Masing stresses six central points on top of his detailed analysis. Beside making search engine providers a quasi-private censor, he is wary of allowing search engine providers to decide on the value of a deletion request.  Based on their assessment, search providers can decide whether there is a need to turn to data protection authorities. Not only would there be strong incentives for the search engine providers to decide cases on their own, possibly overriding citizens' own interests. But, additionally, once data protection authorities are brought into the equation they would become de facto communication regulation authorities, Masing reasons.

Also, the procedure as proposed and meanwhile implemented by Google did override the rights of those third-party websites who published the filtered information in the first place. While being the “victims” of the procedure to some extent, they had no part in the decision. In general, Masing is concerned, the detailed and complicated provisions on distributing information and the related rights would be dumbed.

Ruling may upset balance between right to communication and right to privacy

The German judge also thinks that the highly contested balance between the right to communication and the right to privacy gets lost, when privacy rights are made the principal right in any case. Linking the publicaton of private information to earmarking principles relevant in public law was at least questionable. The general primacy of privacy against freedom of expression could derail earlier achievements in balancing existing moral and traditional sense of honour with public communication as it has developed.

Masing proposes that the core concerns the Court wanted to address, especially the right to be forgotten, might have been solved by other, possible more differentiated ways that would have tried to respect the conflicts between privacy rights and freedom of expression and information. In the end the German judge concludes, that there are gaps in EU data protection legislation, especially when it comes to acknowledge and put into law the differences between public law and private law actors. The proposed EU data protection regulation which is still on the agenda of the EU bodies might be the right place to find better and more targeted provisions for the different spheres, Masing hopes. But so far the proposals did not go far enough in that direction.

Google chief legal officer David Drummond in a comment in Mid July reported the search engine provider has received 70.000 take down requests since May, related to a quarter-million websites on the net. Drummond said there was a need to talk about the right to be forgotten. German judge Masing obviously does agree.