Germany: The Right to Be Forgotten

The article discusses the right to be forgotten in the German jurisdiction. It first states that a special right to be forgotten does not exist in Germany, but arises from general civil law and general data protection law—even before the General Data Protection Regulation (GDPR) came into force. In a second step, the limits of these claims against the service provider as an indirect tortfeasor are shown, who is obliged to review the specific notification of the party affected. In this context, it will be discussed which constitutional requirements—defined by the case-law of the Federal Constitutional Court—the service provider must take into account when balancing different interests. Subsequently, it is shown by which legal remedies the right to be forgotten and possible claims for damages can be enforced. Afterwards, the development of the right to be forgotten is presented, taking into account the reactions of the German courts and commentators, in order to show that in Germany the claiming of service providers as indirect tortfeasors has already been established before the ECJ’s decision. The actual effects of the ECJ’s decision will then be demonstrated by Google Germany’s implementation of the requirements of the right to be forgotten. In the ensuing section, the extent to which claims to deletion arise from the new GDPR will be explained. In the end, the article comes to the conclusion that the core task of the GDPR is to now strike a reasonable balance in the current secondary law while adequately accounting for the basic guidelines from fundamental rights as the competent authorities make use of the consistency procedure.