Germany, Higher Regional Court Frankfurt, 6 September 2018 16 U 193/17

Identification of the case

• Respect for private and family life (art. 7 CFREU)
• Protection of personal data (art. 8 CFREU)
• Freedom of expression and information (art. 11 CFREU)

• Grundgesetz (German Constitution) Art 1(1), 2(1), 5(1)

• GDPR Art. 2(1), 3(1), 6 (1) 1 f, 9 1, 17, CFREU Art 7, 8, 11

Summary of the case

The plaintiff was the managing director of a well-known non-profit organization that showed a considerable financial deficit in 2011. The press repeatedly reported on the financial imbalance, partly by naming the plaintiff and the fact that he was not on duty for health reasons. These reports are accessible and listed by the search engine ‘Google’ that is operated by the defendant.

The plaintiff now requests an injunction against the defendant. Accordingly, the defendant should refrain from displaying five concrete URLs in the search results in Germany, which lead to corresponding press reports, when searching for the plaintiff’s first name and surname. As the Regional Court dismissed the complaint, the plaintiff now raises the issue at the appeal in front of the Higher Regional Court.

• Civil judicial enforcement

Injunction against display of URLs enabling access to reports on the plaintiff’s health.

In its judgement, the Higher Regional Court has to answer the question whether Google must delist URLs when they lead to press articles discussing health-related data of the plaintiff. Although health data is sensible under art. 9(1) GDPR, it is possible to process health-related data under art. 17 GDPR when it is necessary for the exercise of the right to free speech and information. Thus, the right to privacy and data protection have to be balanced against the right to freedom of speech and information. Within this balancing exercise, the Higher Regional Court follows the Federal Court of Justice’s case law. It considers that search machine operators have obligations to delete data based on their special position only when they receive a notice of a clear and obvious violation of a personality right. Using this yard stick, the Higher Regional Court finds that the request does not constitute a ‘clear and obvious’ violation as the reports were lawful at the time of their publication and only contain factual reports. Individuals have to accept such reports, even when they are not in their favour. In this balancing exercise, the Higher Regional Court also relies on the right to free speech of the journalists who originally published the reports in question. As the internet not manageable without search engines, the de-listing of their articles by search engine operators affects the right to freedom of expression of those journalists. In the present case, the plaintiff was at the time of publication the managing director of an important NGO, which was struggling financially. Consequently, the public had an interest in the state of health of the managing director.

The interest in upholding this right to freedom of expression, however, can diminish with time as held in the CJEU’s Google Spain judgment. The Higher Regional Court doubts whether Google Spain is applicable at all in the current case as the reports in Google Spain were published on a ministry’s website. In the present case, on the other hand, the reports are published by the press and, thus, covered by the journalists’ right to freedom of speech. Furthermore, the CJEU’s ‘rule-exception-mechanism’ is not included in art. 6 and 17 GDPR. The court relies on this fact to conclude that the Google Spain’s balancing mechanism is not to be applied automatically, but must take into account the individual circumstances of the case. In the present case, the Higher Federal Court finds that the period of seven years is not enough to diminish the interest of the public in the articles yet.

Consequently, the Higher Regional Court did not grant the injunction against Google. The case, however, is currently pending appeal at the Federal Court of Justice.

Role of the Charter and role of the general principles on enforcement

The Charter is applicable as art. 17(3) GDPR refers to the right to free speech. Hence, the Court has to refer to the applicable right in the ECHR, the Charter and the German Constitution.

The Court relies on the right to free speech resp. the right for private life and the right to protection of one’s data in balancing the involved interests. The focus, however, remains of the application of the CJEU’s Google Spain judgment.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

Conform interpretation with EU law as interpreted by the CJEU.

Determination of interpretation of ‘deleting’ data within art. 17(1) d GDPR and of the balancing between the involved interests.

Additional notes on the decision

The impact of this case is not yet clear, as it is currently pending at the Federal Court of Justice. Nevertheless, the decision is cited by the first district courts of Frankfurt, Köln and Hamburg in cases relating to the publication of health-related information (LG Frankfurt/Main, 17.10.2019 - 3 O 452/18, LG Köln, 30.01.2019 - 28 O 353/17, LG Köln, 05.04.2019 - 28 O 98/19, LG Köln, 04.05.2019 - 28 O 98/19, LG Hamburg, 01.02.2019 - 324 O 84/18).