BGH - VI ZR 405/18

BGH - BGH VI ZR 405/18
Court:	BGH (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 17(1) GDPR
Decided:	27.07.2020
Published:
Parties:
National Case Number/Name:	BGH VI ZR 405/18
European Case Law Identifier:
Appeal from:	LG Frankfurt (Germany) LG Frankfurt am Main 2-03 O 190/16
Appeal to:	Appealed - Overturned OLG Frankfurt (Germany) VI ZR 405/18
Original Language(s):	German
Original Source:	Bundesgerichtshof -Pressemitteilungen - Nr. 095/2020 (in German)
Initial Contributor:	n/a

The BGH dismissed the plaintiff's appeal regarding the right to be forgotten (Article 17 GDPR) on the grounds that his interests do not outweigh those of internet users and press organs.

English Summary

Facts

The plaintiff was the managing director of a regional association of a charitable organisation. In 2011, this regional association had a financial deficit of almost one million euros. At the time, both of these events were reported in the regional daily press, mentioning the plaintiff's full name. The plaintiff now requests the defendant, as the person responsible for the internet search engine "Google", to refrain from including these press articles in a search for his name in the results list. The Regional Court dismissed the action. The plaintiff's appeal was unsuccessful.

Dispute

The question was whether Google has to delist press articles of the plaintiff according to Article 17 GDPR.

Holding

The court hold that the basic rights of the plaintiff does not outweigh the interests of the search engine and the interest of its users, the public and the press organs for the linked newspaper articles, also taking into account the time that has passed by, this is why he cannot base his claim on Art. 17 GDPR.

Comment

This summary is based on the press release of the BGH, the judgment is not yet available.

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

The plaintiff was the managing director of a regional association of a charitable organisation. In 2011, this regional association had a financial deficit of almost one million euros; shortly before that, the plaintiff called in sick. At the time, both of these events were reported in the regional daily press, mentioning the plaintiff's full name. The plaintiff now requests the defendant, as the person responsible for the internet search engine "Google", to refrain from including these press articles in a search for his name in the results list. The Regional Court dismissed the action. The plaintiff's appeal was unsuccessful.

The VI. Zivilsenat of the Bundesgerichtshof (Federal Court of Justice) dismissed the plaintiff's appeal allowed by the Court of Appeal. The plaintiff's asserted claim for listing of the result links in dispute does not arise from Art. 17 (1) GDPR. According to the case-law of the European Court of Justice and the order of the First Senate of the Federal Constitutional Court of 6 November 2019 (1 BvR 276/17 - Recht auf Vergessen II), the claim for listing under Article 17(1) GDPR requires a comprehensive weighing of fundamental rights which, on the basis of all relevant circumstances of the individual case and taking into account the seriousness of the encroachment on the fundamental rights of the person concerned on the one hand (Article 17(1) GDPR), requires a comprehensive weighing of fundamental rights on the other hand (Article 17(1) GDPR). 7, 8 CFR), the fundamental rights of the defendant, the interests of its users and the public, and the fundamental rights of the providers of the contents proven in the objected result links on the other hand (Art. 11, 16 CFR). As the freedom of opinion of the content providers burdened by the decision is to be included in the weighing as a directly affected fundamental right, there is no presumption that the protection interests of the person concerned take precedence, but the conflicting fundamental rights are to be weighed up equally. However, it also follows from this requirement of equal consideration that the person responsible for a search engine does not have to take action only when he/she becomes aware of an obvious and at first glance clearly recognisable infringement of the rights of the person concerned. In this respect, the Senate does not uphold its contrary case law on the legal situation before the GDPR came into force (Senate ruling of 27 February 2018 - VI ZR 489/16, BGHZ 217, 350, 363 marginal no. 36 in conjunction with 370 f. marginal no. 52).

According to these principles, the basic rights of the plaintiff, also taking into account the passage of time in the specific case, must take second place to the interests of the defendant and the interests of its users, the public and the press organs responsible for the linked newspaper articles, which are to be weighed in the defendant's balance.

In view of the primacy of the application of the data protection law which has been conclusively harmonised throughout the European Union in the present case and the comprehensive weighing of fundamental rights to be carried out when examining a request for discontinuation under Article 17 GDPR, the plaintiff cannot base its claim on provisions of national German law either.