Data protection and free speech in Germany

By Thorsten Feldmann

Freedom of expression is granted by Article 5 of the Basic Law for the Federal Republic of Germany.

Privacy protection in the global information society is today, perhaps more than ever before, a hotly-debated topic in Germany. It is settled in Germany that speech on the Internet enjoys the same level of constitutional protection as off-line speech. At the same time – at least since the Lindqvist decision rendered by the European Court of Justice on Nov. 6, 2003 (Case C-101/01) – the act of releasing a statement about a living person over the Web is controlled by a set of rather restrictive data protection regulations (applicable to so-called person-related information).

There are multiple implications to this classification. For instance, the approach of Section 3 of the German Data Protection Act (BDSG), seeking to minimize the intrusion into the personal sphere, already spells out the principle of “less” data processing, which means in a free speech context “less free speech” and thereby contradicts the constitutional principle according to which free speech has to be fostered.

According to a strict reading of the applicable provisions, expressing an opinion in such cases would be subject to the German Data Protection Act’s basic principle of prohibition of data processing unless expressly allowed. It further subjects such speech to the supervision powers of the various state privacy commissioners in Germany.

Under the common view, exceptions to this broad privacy protection (as stated in Sections 28 and 29 of the BDSG) are to be interpreted narrowly. And in case of doubt, the law should be interpreted pro privacy and contra speech, unless constitutional safeguards apply. Furthermore, the active Internet user should find the statutory requirements under Sections 29(2) and 33 of the BDSG practically impossible to follow. Add to this the fact that the so-called medial privilege (Section 41 of the BDSG) is of no avail, since it applies only to traditionally print media.

To make a strong statement here, it is not only that speech on the Internet – as compared to speech delivered through other media – has been discriminated against in our country. The privacy regime imposes restrictions on this form of self expression that appear to conflict with our constitutional free speech guarantee.

The German Constitutional Court labeled the right to free speech a “special” constitutional right. Its jurisprudence mandates only a limited application of laws that abridge free speech. When personality protections and speech protections collide, neither should a priori be considered superior to the other. In fact, in order to secure viable public debate on topics in the public interest, courts have partly recognized a presumption in favor of speech. In close calls, the court must balance between the conflicting speech and privacy interests. And since free speech has been recognized as a form of communicative self-actualization, the lawmaker principally should avoid placing practical obstacles on exercising speech rights.

There is no constitutional command in place saying that all this rich free speech jurisprudence has nothing to do with the Internet. The crude German model of privacy law glosses over a decades-old jurisprudence of fine distinctions designed to achieve a proper equilibrium between privacy and free speech interests.

One may even go so far by saying that certain statutory provisions (Sections 4, 29(2) and 33(1) of the BDSG) are plainly incompatible with the constitutional free speech guarantee as expressed in Article 5 of the German Federal Constitution. As every first-year law student knows, constitutional rights are not the type of things lawmakers may bend as they please through “simple” legislation (or otherwise). With this recognition in mind, civil courts in Germany indeed gave a significantly narrow reading to the restrictions on speech stipulated in Section 29(2) (communication or personal data).

This jurisprudence, however, seems to overstep the interpretation mandate of the courts, as it stands in sharp contradiction to the clear wording of the statute (and, in doing so, intrudes the legislator’s authority). Further, the jurisprudence coming from civil courts provides only pointed solutions on a case-by-case basis to specific questions. It does not concern major uncertainties such as the duty to provide notice (die Unterrichtungspflicht) in Section 33(1) BDSG.

No matter what your take on privacy law may be, it is questionable whether the exercise of the free speech guarantee should (continue to) be subject to a censorship mechanism in the form of supervision by state privacy commissioners.

About the author

Thorsten Feldmann
Thorsten is a partner at Berlin-based firm JBB Rechtsanwälte. He specializes in advising German and international companies and individuals working in the fields of IT, media and the arts. Thorsten handles a wide range of complex commercial and intellectual property litigation and transactions. Among others, he has represented major media entities, publishing houses and internet service providers in connection with free speech and other liability issues. Additionally, Thorsten provides his clients with full-range legal services in complex IT projects and transactions. He may be contacted at feldmann[at]jbb.de.