![Sample our Law journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5942/TOC-Subject-Sample-2021-Law.jpg"})
Abstract
Although never having defined it explicitly, German law and jurisprudence imparted a right to be forgotten which could be described as a right to delete long ago. Its basis can be found in the constitution where it is torn between the freedom of expression and the right to informational self-determination. Also, German legislature introduced non-constitutional provisions ensuring the deletion of personal data in specific cases that are applied regularly. This article aims to give an overview of the “German” right to be forgotten, its legal framework and its application in court.
Notes
1 This meaning also underlies the new proposed Data Protection Regulation, see Art. 7.
2 One of the 16 Länder (federal states) in the middle of Germany.
3 See for the German history of the federal adoption of the Data Protection Law, in detail, Abel (Citation2003).
4 Some of the revisions were made due to propositions within Germany, others were necessary because of European requirements (Gola and Schomerus Citation2011).
5 Bundesverfassungsgericht, decision printed in: Neue Juristische Wochenschrift 1984, 419.
6 Bundesverfassungsgericht, (n. 8), p. 421.
7 Ibidem, p. 421 f.
8 Bundesverfassungsgericht, (n. 8), p. 422.
9 He therefore makes clear that Germany does not take a proprietary approach to data protection as proposed, for example, by Purtova (Citation2010).
10 Bundesverfassungsgericht, (n. 8), p. 422.
11 See the decision by Oberlandesgericht Hamm, Neue Zeitschrift für Verwaltungsrecht 2001, p. 235.
12 Section 28 and Section 29 BDSG enumerate the cases in which no consent is required.
13 In this case, the other provisions of Section 35 Paragraph (2) BDSG could grant a right to delete, e.g. if the data are not necessary for the purpose for what it was initially collected.
14 Bundesverfassungsgericht, decisions volume 27, p. 83.
15 See for an extensive list Schaffland and Wiltfang (Citation2010).
16 This is in accordance with Bergmann, Möhrle, and Herb (Citation2010). This obviously only applies if the user did not change the privacy settings and his or her profile is visible for everyone.
17 In case of a business-like processing for the purpose of transmission to third parties Section 29 BDSG is applicable.
18 Oberlandesgericht Hamburg, Zeitschrift für Urheber- und Medienrecht 2010, p. 706.
19 Comparable to what was originally proposed in the leaked version of the Draft Data Protection Regulation in Art. 15 Paragraph (2).
20 This provision is different from Art. 13 of the Draft Regulation as this article requests the communication of erasure, etc. due to any reason and not only unlawful processing.
21 Section 35 Paragraph (7) BDSG transposes Art. 12 Paragraph (c) of the Directive into national law.
22 Bundesgerichtshof, decision published in: Neue Juristische Wochenschrift 1986, p. 2505.
23 Bundesverfassungsgericht, decisions volume 35, 202.
24 Ibidem, p. 202 ff.
25 However, in its ‘Population Census’ decision the Bundesverfassungsgericht referred to the findings of the ‘Lebach I’ decision and based the right to informational self-determination on the statements contained in it.
26 Bundesgerichtshof, decisions volume 183, 353 – ‘Sedlmayr’.
27 Bundesgerichtshof, decisions volume 181, 328 – ‘Spickmich.de’.
28 Bundesgerichtshof, decisions volume 181, 328.
29 A very similar case can be found in: Higher Court Frankfurt, decision printed in: Neue Juristische Wochenschrift 2012, p. 2896, where a doctor filed a lawsuit against a website that rated the quality of doctors. The Higher Court stated that the freedom of expression outweighed the doctor's rights.
30 Bundesgerichtshof, decision published in: Neue Juristische Wochenschrift 2007, p. 2558 ff.
31 Bundesarbeitsgericht, decision published in: Neue Juristische Wochenschrift 1984, p. 2910.
32 Ibidem, p. 2911. The company said it needed the information for statistical reasons and for the purposes of comparison to subsequent applications.
33 Ibidem, p. 2911.
34 Civil claims according to Section 823 BGB. The right to delete according to the general provision of Sections 1004 together with 823 BGB can only be enforced if the BDSG is not applicable.
35 And one of the best approaches due to the difficulties in enforcing the right is the data minimisation principle and the request for a better ‘self-data protection’. Bernal (Citation2011, Citation8) said ‘wherever data exists, it's vulnerable – so the only way that data can really not be vulnerable is for it not to exist.’