The Right to be Forgotten – Can We Now Forget About It?

Over the last nine months, German courts have issued a pair of rulings that seem to be at odds with one another when it comes to the right to be forgotten under the GDPR. The second of these two cases was decided on July 27 in which the Federal Court of Justice stated that the public’s right to information outweighed the right of the plaintiff to have unfavorable information about him removed from the Internet – a ruling that was hailed as a “triumph” for the defendant Google. Yet the German Constitutional Court issued a ruling in November 2019 (in a case with a rather macabre background) that seems to stand diametrically opposed to today’s case and which stated that the plaintiff’s right to be forgotten should prevail in the face of information requires that certain information about him be removed from the Internet.

So what is going on with the German courts and the right to be forgotten? Is there any way for a company to predict what sort of judicial guidance might arise in the near future? Or is there some logic underlying these two rulings that unites them despite what seem to be at first glance a contradiction?

But first, let’s have a look at what the right to be forgotten is – and isn’t.

What is the “Right to be Forgotten”?

The first comprehensive data protection program to cover the whole of the European Union was the Data Protection Directive that took effect in 1995. Under this directive – which required member states to enact legislation to ensure not only that a data subject’s personal data is secure, but also to protect citizens’ fundamental rights as far as his or her data are concerned. It was under this legal framework which preceded the GDPR that the European Court of Justice ruled in 2014 (in “Google Spain”) that search engines such as Google must, under certain circumstances, remove links that pertain to an individual if that person so requests. In that case, a Spanish citizen requested that information about his previous bankruptcy that had been published in a newspaper be removed from Google’s search results. This case is considered a watershed in EU data privacy law since it was the first legal establishment under European human rights law to require data controllers to consider individual requests to remove or extinguish personal information.

The Data Privacy Directive was superseded by the General Data Protection Regulation (GDPR) in 2018, however many data privacy concepts developed under the Directive were carried over into the Regulation. In fact, the GDPR incorporated the individual right to have information removed that the European Court of Justice formulated in 2014 directly into the text of the Regulation. Under Article 17 of the GDPR, an individual can request such removal if, inter alia, the data is no longer needed or if the data subject withdraws his or her consent.

Of course, the right to be forgotten is not absolute, and the GDPR in Article 17(3) allows organizations to decline requests for deletion under the right to be forgotten (sometimes also called the right of erasure) if, for example, such a request would hamper the right of free expression. And it is exactly the tensions inherent in these two assertions that are at the heart of the following two (seemingly bewildering) German cases.

A Murder at Sea, and Der Spiegel’s Long Memory

One of the most recent cases on the right to be forgotten has its grizzly origins in the early 1980s – and not anywhere in Europe but in the Caribbean. (To give some background to this case, I am going to paraphrase from the 2017 book by Nic Compton called Off the Deep End: A History of Madness at Sea.) It was in 1981 on the Canary Islands that two West German men, Paul Termann and Herbert Klein, set off on their boat the Apollonia for the Caribbean with the intent to start a charter business. En route, tensions increased between the two men, with Termann increasingly feeling frozen out of the rest of the crew. A petty argument then exploded into a full rage, with Termann pulling a gun on Klein and telling him he had only 10 minutes to live. When Klein tried to defend himself by hitting Termann over the head with a pump handle, Termann started firing wildly, first killing Klein’s girlfriend and then Klein himself. Although Termann initially claimed that the two victims had fallen overboard in a storm, other crew members informed the German police. Termann was then arrested, put on trial, and sentenced to life in prison, however he was released in 2002.

Understandably the murders and trial made for sensational headlines, and the German weekly Der Spiegel ran at least two articles about the case in 1982 and 1983, both of which mentioned Termann by name. Those articles still appear (at least of this writing) in the magazine’s digital archives in the original German-language versions. For years Termann sought legally to have those archives removed under the right to be forgotten, arguing that perpetual access to records of long-ago crimes hinder his right to freely develop his “personality.”

The first judicial ruling on Termann’s case came in 2012 when a court rejected his claims and stated that his right to privacy was outweighed by both the freedom of the press and the right of the general public to access information. Recall that this ruling preceded both the Google Spain case and the adoption of the GDPR, so that by the time the German Constitutional Court reviewed the case in 2019, the privacy landscape had shifted considerably in favor of individuals, which may have influenced the way the court weighed competing factors.

Why Did the Constitutional Court Side with Termann?

While some of the English-language press coverage of the case tended to highlight the luridness of the initial case, analysis of the court’s reasoning was unfortunately fairly thin when the ruling was announced. Fortunately the press release from the German Constitutional Court itself goes into how they decided as they did (the original German-language version can be found here; a summary of the most pertinent points follows.)

The court first notes that although it is deciding an issue that is within the scope of the all-EU GDPR, member states will apply the GDPR in different ways depending upon the laws that govern each individual nation. In Termann’s case, the German court naturally applied the German Basic Law and its attendant fundamental rights. One of these rights that the German Basic Law guarantees is the right to the “free development of one’s personality,” which the court stated entails the “self-determination of information” about oneself (informationelle Selbstbestimmung) – meaning that an individual has a degree of power over what information may be disseminated about someone. The Constitutional Court ruled that the lower court had incorrectly applied the scope of protection afforded by the Basic Law by emphasizing the public interest in accessing information over the right to control information about oneself that is “stigmatizing” and that risks “social exclusion.” Freedom requires a legal framework that gives people the chance to leave mistakes in the past and to not have previous actions available to the public indefinitely.

If you are going by the English-language press, it seems that the Constitutional Court flatly stated that Termann has the right to be forgotten, and that “his name can be removed from online search results.” Alas, this seems to be a massive oversimplification of what actually happened. The court did not rule that Herr Termann’s right to be forgotten was violated, and that he can now go to Der Spiegel and have the archived articles go away. As seems to happen with regrettable frequency, much of the media reporting missed the mark here, sometimes quite widely.

What the Bundesverfassungsgericht did in fact was to refer the case back to the Federal Court of Justice to re-weigh the competing considerations of freedom of the press with the (newly affirmed) right to have some determination over information about oneself. Courts and other parties need to take each case on its unique facts, given factors such as time elapsed since the event in question and the feasibility of implementing informational safeguards. The Constitutional Court in fact emphasized the importance of press freedom when considering erasure requests that a German press-freedom group, Reporter ohne Grenzen (Reporters Without Borders) welcomed the ruling as it did not place the right to be forgotten over the right to publish and archive matter even if it refers to someone by name.

All of which means we must still await the ultimate outcome of the Termann case….

In my opinion – assuming the Federal Court of Justice rules on this in the next year or so – the most likely outcome is that the right to publish and archive will prevail over Termann’s right to be forgotten. The Constitutional Court had said that the long interval between Termann’s crimes and the present day mean that the public has less of a right to know about these events, yet the power to infringe on Termann’s right to self-determination is still present. Perhaps. A more likely analysis from the court seems to be that the further in the past Termann’s actions were – he was 43 at the time of the murders and is over 80 now – the less likely the harm to him in the present. Moreover, public interest does not vanish with time, even if it pales compared to an ongoing murder trial. Therefore, the right to publish and the right to be informed would most likely outweigh any possible harm (which it is not clear if Termann was able to demonstrate; he had been out of prison for seven years before he even knew about Der Spiegel’s archived articles.) In all likelihood, the linked articles above will continue to be freely available in their original form, and the right to be forgotten will not be implicated here.

How Germany’s Latest Erasure Ruling Fits with the Termann Case

On July 27, 2020, Germany’s other High Court – the Federal Court of Justice – rejected the petition a man who had requested that Google remove links to old news articles in which his name appeared. (In Germany the Court of Justice is the highest court for matters of civil and criminal law, while matters that implicate rights guaranteed in the Basic Law will be heard in the Constitutional Court. If a plaintiff believes the Court of Justice failed to protect his or her fundamental rights, the Constitutional Court can then hear an appeal. This is what happened in the Termann case.)

The news articles in question were from 2011 and described the million-Euro loss that the petitioner’s charitable organization had suffered as well as the poor state of the petitioner’s health. Unlike in Termann’s case where the coverage had appeared in a national magazine, these articles appeared in a regional Frankfurt newspaper, although they too were accessible online. The Federal Court of Justice ruled that while Article 17 of the GDPR grants the plaintiff a right to erasure, this right must be weighed against the public interest to information and the freedom of the press to publish. In this case, the plaintiff’s request must be measured against the time elapsed and the public right to information. In other words, the court held that there is no “automatic” right of erasure, so Google can continue hosting the digital archive with the relevant articles.

So it turns out this case and the Termann case do not actually contradict one another; instead, both rulings state that each request to remove digital archives or links must be weighed against the countervailing rights of the publisher and the public. Since the Constitutional Court did not rule that the right of erasure automatically requires (for example) Google to remove search results, this week’s case is part of the same emerging jurisprudence that seeks a compromise between competing considerations. And so far, it appears that the right to erasure has been consistently subordinated to the wider interests of the press and public.

Where is Article 17 Headed? What Circumstances Will Require Erasure?

Since the GDPR is only a few years old at this point, we are only just now seeing the first cases dealing with erasure. The two German cases mentioned above can only lead one to wonder what exactly would be adequate grounds for erasure to be granted. On the other hand, earlier in July the Belgian Data Protection Authority fined Google 600,000 Euros for failing to comply with an erasure request by a Belgian public official of searchable information about him. Google stated that it did so because it considered the right of the public to access this information to outweigh the interests of the official. Google can still appeal this fine, and it is possible that Belgian courts or the European Court of Justice will take up this matter in future. So while the exact parameters of the right of erasure are still being demarcated in European courts and DPAs, it seems that the broader interests of the press and wider public – which happen to overlap largely with the interests of Google and such – are tipping the scales away from individuals’ desires for erasure.

“Just Downloading It is a Subversive Act” – Telegram Attracts Lockdown Opponents as Well as Privacy Fans

While the press in the United States has understandably focused their reporting any whatever anti-lockdown protests that happen on those taking place domestically, a fairly vigorous protest movement has also appeared in Germany. The sometimes violent demonstrations – which have seen thousands taking to the streets in Stuttgart, Munich, and Berlin – seem however to be attracting a broader set of political viewpoints and themes than the US version, ranging from those concerned about the erosion of constitutional rights all the way to anti-vaccination conspiracists (centered largely around Bill Gates.) Although these protests have been necessarily small-scale due to public-health restrictions, discontent with the government’s anti-coronavirus measures have had a surprising impact on how the public is using technology.

What is Telegram?

The messaging app Telegram is relatively little-known in the United States with far fewer monthly users than more-established apps such as Facebook Messenger and Snapchat. In fact, those two messaging combined apps boasted over 150 million users in the United States in April 2019 compared to just under 3.5 million for Telegram. By comparison, Telegram had 7.8 million monthly users in Germany in November 2019 (contrasted with a combined 76 million for WhatsApp and Facebook Messenger.) The organization behind Telegram, which was founded in 2013 by Russian brothers Nikolai and Pavel Durov (who also founded the Russian equivalent to Facebook, Vkontakte, in 2007), does not disclose where it rents offices in order to protect users’ data. (The brothers Durov currently live in Dubai, but they are silent about who or where the rest of Telegram is.) This stance could explain Telegram’s sudden popularity among the segment of the population that sees restrictions on movement or assembly as excessive or authoritarian.

What Makes Telegram So Appealing?

The German public is generally seen as skeptical if not outright skittish in sharing personal electronic data, which some researchers have ascribed to the country’s experience with totalitarian surveillance. Unsurprising then is widespread unease that has met proposals to use cell phones to track and trace part of the population to limit the spread of COVID-19. Telegram’s brand of cryptographed libertarianism has therefore found fertile ground among not just users who value data privacy but also for those who share messages that might otherwise be removed based on potentially objectionable content.

Although the German government has been striving to get tech giants like Facebook and Twitter to quickly remove certain illegal content, so far Telegram has proven untouchable. Pavel Durov has even stated that he will only assist the police with copyright violations, terrorist propaganda, and child pornography. For him, governments are otherwise monstrous entities that only serve to limit the individual and that “local restricts on freedom of speech do not matter.” For instance, German laws that criminal speech that denies or trivializes the Holocaust – and that lead to immediate removal from Facebook – are simply ignored. Telegraph is also partially or completely blocked in Russia, China, and Iran because the company refuses to hand over user data to authorities.

This seeming shroud of secrecy means that some users consider merely downloading the app to be a “subversive act” that skirts speech restrictions and keeps users’ personal data hidden. Since the start of the COVID crisis, celebrities like the vegan TV chef Attila Hildmann and the pop star Xavier Naidoo have used their significant Telegram followings to disseminate conspiracy theories about mandatory vaccination or secret underground bunkers where children are kept.

Combatting Coronavirus Conspiracies

Naturally there has been massive pushback on these unsupported statements—however with much of that coming from government-owned public channels or establishment media such criticism might often fall on deliberately deaf ears. The massive reach of Telegram’s user groups as compared to WhatsApp also reinforces the informational bubble that allow conspiracy theories, if not speech deemed illicit in Germany, to spread unchecked. Whereas a WhatsApp group has an upper limit of 256 users, groups on Telegram can be as large as 100,000 users (almost as much as the circulation of some national newspapers.) Just a few large accounts combined creates a parallel media landscape operating outside restrictions on speech, either imposed by lawmakers or formulated by social media companies themselves.

Are Current Online Hate Speech Laws Effective?

This is precisely what some critics of Germany’s online hate speech laws had warned about. Objectionable speech would not vanish once objectionable content was removed from Facebook or YouTube. Rather, it would simply move to other, more private platforms that would operate outside of any form of social or legal control such as closed messenger groups. Martin Fehrensen, a German social media expert and founder of the Social Media Watchblog, observes that such users retreat into their own “private” spheres within messenger services. These chat groups operate outside of any “filtering” algorithms, which have an “enormous influence” on what content is shown. Fehrensen also claims that the current system by which Facebook and YouTube operate functions well in that users who post objectionable material will have to contend with pushback from other users they are connected with. By contrast, Telegraph’s limited functionality means that administrators of a chat group alone act as gatekeepers and can decide to exclude members for whatever reason, thereby building an echo chamber in which aberrant world views only grow more robust.

If Fehrensen’s view is correct that social media’s own content gatekeepers, combined with the potentially suppressing function of algorithms and users’ role as content stakeholders, can keep objectionable material to a minimum, this may show another – and perhaps more effective – way to tackle the problem than with massive fines and unrealistic deadlines that can never achieve the ideal of a civil and fact-based Internet. As Telegram shows, spaces where bizarre conspiracies and sometimes outright hatred will likely exist despite laws to curb disinformation and ethnically or religiously based agitation. Social media companies can perhaps get ahead of an avalanche of new laws by showing it can effectively patrol its own while making extralegal echo chambers less appealing.

The Karlsruhe Court and a Constitutional “Crisis” – What You Need to Know About the German “Conflict” with the EU.

The last few weeks have been rife with reporting and outright handwringing about an inevitable “crisis” brewing between European Union judicial institutions, on the one hand, and the German Constitutional Court on the other. Much of the discussion has been admittedly difficult to follow and it can be easy to get bogged down in the details that involve not just the onion-like layers of the EU’s federal architecture but of its financial institutions as well. This article will give an overview of who the actors are in this story, what is the nature of the dispute(s), and what are some predictions for how this tension may—or not—be resolved.

What is the Federal Constitutional Court?

Most Americans would probably view Germany’s Federal Constitutional Court – or Bundesgerichtshof – as analogous to the United States Supreme Court. In the sense that each court acts as a final arbiter of questions of constitutionality that view is fairly accurate. But there are some significant difference in how both courts fit into their respective legal systems that are worth noting when considering this latest ruling.

The first salient difference is that the German Constitutional Court is, strictly speaking, not the highest court in the land—rather it is one of five Federal supreme courts. Those other courts—spread throughout Germany in the cities of Leipzig, Munich, Erfurt, and Kassel—each have their own specific bailiwick such as administrative law, finance, or labor law. The Constitutional Court (located in the southwestern city of Karlsruhe) adjudicates matters in which there was an alleged violation of a fundamental right guaranteed by the Basic Law (or Grundgesetz.) It can also review the constitutionality of laws of the individual German Länder, or states, even before a law takes effect.

The Federal Constitutional Court is also not an appeals court; an individual alleging a violation of his or her basic rights can bring a case directly to Karlsruhe, unlike in the United States in which generally the Supreme Court reviews the decisions of lower courts. (This particular difference is of particular import for understanding the nature of this controversy.) The Constitutional Court is seldom the subject of political controversy, in part because the 16 judges that serve on the court for a single 12-year term are chosen by supermajorities in the upper and lower houses of the German legislature.

The Euro Stops Here—The European Court of Justice in Luxembourg

The other actor in this brewing saga is the European Court of Justice, located in Luxembourg. Whereas the German Constitutional Court, like all other national courts, is concerned principally with interpreting and applying national laws, the ECJ’s authority is over European Union law—including ensuring that EU law is being properly applied by the respective member states. The ECJ can therefore sue the national government of a member nation if that government fails to comply with EU law. The national courts of EU member states can also petition the ECJ to interpret EU law in cases where the EU law being applied in a case in a member state might be vague or appear to be invalid, even though that case is not being adjudicated before the ECJ.

What is the European Central Bank, and What Were They Accused of Doing?

The essence of this controversy lies in actions taken in the last decade by the Frankfurt-headquartered European Central Bank, which sets monetary policy for the Euro zone and whose primary task is to ensure price stability within the 19 countries using the Euro. In response to the financial crisis that started in 2007, the ECB launched in 2015 a program called the Public Sector Purchase Program (PSPP). This program consisted of the Bank purchasing bonds issued by Euro-zone national governments and agencies as well as regional and local governments within those countries. One of the banks participating in the PSPP is Germany’s central bank, the Bundesbank.

It was the Bundesbank’s participation in the bond-purchasing program that drew complaints by a group of German citizens who claimed that the implementing the PCPP was beyond the powers of the European Central Bank. Specifically, the complaint stated that the PCPP appropriated the power of the German government to set its own monetary policy and thus violated the section of the German Basic Law that states that all state authority is derived from the people. By essentially transferring German budgetary policy to the European Union, as the complaint goes, the German government—and therefore the German people—cannot ensure that the PSPP would have a “proportional” impact on German fiscal and monetary policy. By “proportional,” the complaint here refers to the definition set out in the Treaty on European Union that states that the EU shall take only that action which is necessary to achieve its aims and no more.

How Did The European Court of Justice Rule in this Case?

The European Court of Justice took up these arguments after the German Constitutional Court had requested a ruling in the issues of EU law it was considering in a case that had been brought by around 1,750 German citizens. It is worth re-stating here two aspects of European court systems that contrast with the judicial system in the United States. The first is that the German high court consulted the ECJ and asked it to clarify a point of EU law in a case brought by German citizens. No such analogous situation could exist in the United States in which a state court requests the Supreme Court to clarify a point in Federal law even though there is no case before the Justices. The second is that, under the German system, a complaint can be made alleging a violation of constitutional rights even where has been no injury in fact that can be shown. None who brought the case to Karlsruhe—including Heinrich Weiss, chairman of SMS metals and Bernd Lucke, founder and former member of the populist Alternativ für Deutschland party—alleged that they had personally suffered an injury due to the PSPP. Rather, the complaint was founded on the structure of the program itself.

In December 2018 the ECJ issued a ruling that stated that the PSPP did not exceed the mandate of the European Central Bank since the EU has exclusive competence for setting monetary policy for Euro-zone members. Since under the Treaty of the European Union the ECJ adjudicates questions of European law, it is expected that members’ national courts will incorporate the ECJ’s reasoning into their own rulings.

And What Did the Bundesgerichtshof Say?

The essence of the controversy lies precisely in that the German court did not incorporate the ECJ’s reasoning into its own ruling on the case before it. In fact, it rejected it outright (and practically ridiculed it.) While the court stated that “as long as the [ECJ] applies recognized methodological principles and the decision it renders is not objectively arbitrary . . . the Federal Constitutional Court must respect the decision.” However, since the opinion handed down from Luxembourg was, as the judges in Karlsruhe characterized it, “absolutely incomprehensible,” and since the ECJ failed to take into account a balancing of competing interests, its proportionality review was “meaningless.”

Autsch, as a German might say.

Quo Vadis, Europa?

With the Bundesbank comprising 26 percent of the shares in the PSPP, an exit by Germany’s central bank (Gerexit? Deutxit?) would have massive consequences for not just this program but for the stability of the Euro zone as a whole. Indeed, the Bundesbank has suspended PSPP auctions until further notice, and the Constitutional Court ordered the bank to wind down its purchases within three months.

But most of all this ruling could set up a battle for which instances have supremacy within the EU. It is possible the European Commission could take legal action against Germany and insist on fines for its judicial “intransigence,” even if the final judgment of the Federal Constitutional Court cannot be changed. There has been the almost inevitable speculation that this ruling will embolden countries like Poland and Hungary—both of which having been butting heads with Brussels on questions of the rule of law lately—to disregard the ECJ when they please.

On the other hand, the uproar of the last few weeks will likely die down if Brussels decides (wisely, in my opinion) that it isn’t worth the trouble to go after Germany on what is, after all, an outlier of an outcome. Brussels would regardless crack down on Eastern European nations if they violate judicial independence and press freedoms. This approach would avoid the risk of the European Union appearing even more dictatorial than it is sometimes portrayed, instead saving more of its bureaucratic might to be a guarantor of human rights where they may be threatened. As it is, Chancellor Merkel (and French President Emmanuel Macron) seem to be getting ahead of economic uncertainty by announcing a massive rescue package that would at least appear to be taking future economic obligations away from central bankers, perhaps obviating the appetite for lawsuits based on defending national sovereignty.

(Don’t) Burn This: Bundestag Prohibits Desecrating National Flags at Public Protests

On May 14, 2020, the German Bundestag (Parliament) approved a new law that expanded existing prohibitions on flag-burning to cover all national flags as well as the flag of the European Union. Previously, a person could face fines or imprisonment only for burning the flag of the Federal Republic of Germany or of any of the federal states that make up Germany, such as Bavaria. This law adds an additional section to Paragraphs 90(a) and 90(b) to the Penal Code (Strafgesetzbuch) to encompass any national flag — or even flags that are similar enough to an official national flag that it could be easily mistaken for the official version. A possible prison sentence for a conviction under this law could be up to three years.

The impetus for expanding the existing law were images of Israeli flags being burned at a demonstration in Berlin in 2017 in front of the United States embassy beside the Brandenburg Gate in response to the White House announcing that it plans to move its embassy from Tel Aviv to Jerusalem (the US embassy in Berlin also abuts the vast Memorial to the Murdered Jews of Europe, on a large swath of land that formerly fell within the “no-man’s land” of the Berlin Wall.) The sight of the Star of David (on the Israeli flag) in flames caused consternation and outrage among German lawmakers. Thorsten Frei of Chancellor Angela Merkel’s Christian Democratic Union party stated that “in no way can we tolerate in Germany actions that maliciously denigrate another nation; the Justice Minister, Christine Lambrecht, of the co-governing Social Democratic Party has stated that “burning flags . . . has nothing to do with peaceful protests. It is intended to stir up hate, rage, and aggression.”

Burning the flag of the European Union, while not common in Germany, was a recent social-media trend in Italy as Italians filmed themselves at home burning color print-outs of the EU flag in protest at perceived abandonment by Brussels and other wealthier EU states, especially Germany, during the coronavirus crisis. While the new German law states that “whoever publicly destroys or damages the flag of a foreign state and thereby disparages it” shall be punished (italics added), in light of increased penalties for online hate-speech that were passed this week in France and similar pending proposals in Germany, it may be worth considering if, say, a YouTube video showing someone burning an Israeli flag could run afoul of hate-speech prohibitions.

One argument that could be raised in favor of such a claim is that while a demonstrator burning a flag at a protest may be seen by a few hundred people who were present in close proximity to the demonstrator, and the burning of a flag lasts only a minute or two before the fire is extinguished, a video could reach many thousands of people over a time frame lasting many months or years. In the context of, for example, chants decrying the nation whose flag a person is filming himself burning (“DEATH TO…….!!!”), some politicians may very well claim that this is the type of content that Facebook or Twitter need to remove within 24 hours or face many thousands of Euros in fines. While the United States Supreme Court in 1989 ruled that burning the flag of the United States is protected speech (as presumably would be burning the flag of any other country), European and especially German sensibilities on this matter are very different from American concepts that are underpinned by the First Amendment. Social media companies may soon find themselves grappling with very expansive and generous definitions of “hate speech” as defined by European governments.

“Following in Germany’s Footsteps” – France Passes Legislation Aimed at Fighting Online Hate Speech

Recently I discussed proposals within Germany to tighten that country’s online hate speech laws and how a racially motivated shooting rampage in February would likely add urgency to such proposals. Since then, of course, public discourse has been dominated by COVID-19 and any debate about regulating social media would be vastly overshadowed by the global health emergency. But as countries gradually start lifting restrictions on movement and begin re-opening their economies, issues that had been temporarily dropped are gradually being taken up again by European lawmakers.

As of this coming July we can add the European Union’s second largest economy to the list of countries with laws that impose strict time frames on social media companies to remove objectionable content or face stiff fines. In the first non-public health law passed since the beginning of the COVID crisis, French lawmakers on May 13 approved a long-controversial proposal that would require companies such as Facebook and Twitter to remove “obviously illegal” content within 24 hours of being notified. Failure to do so could result in penalties up to 1.25 million Euros per incident. The law’s requirements for content related to terrorism or pedophilia are even stricter, which requires social media companies to remove such content within one hour of being alerted to such content.

Some of the controversy regarding this new law include concerns that it would be impossible for all but the largest social media companies to comply with tight time frame to remove objectionable content. Particularly for content that must be removed within one hour, the considerable technical requirements to avoid risking large fines could lead to prior censorship of content that could in fact be protected by law. According to the digital rights organization La Quadrature du Net, France’s previous Internet law that allowed police to request removal of terrorist-related content had been used to remove political content instead. La Quadrature du Monde had criticized the law shortly after it had been proposed because it would give a government agency the ability to “decide which content is hate speech and should be taken down within 24 hours,” thus making the Internet more like a broadcaster and thus subject to centralized control.

What makes this new French law interesting in the framework of German law is how it shows Germany to be the at the forefront – for well or for woe – in passing sweeping laws that require social media companies to remove certain content. Nina Jankowicz, an author specializing in international digital policy, described France as “follow[ing] in Germany’s footsteps” with this latest legislation. Le Monde even noted that with this law France now “joins most notably Germany” in regulating digital content, even as France “wants to be a driving force in Europe” in combatting hate online (link in French.)

There are, in fact, striking parallels between both countries’ laws – most notably in how they define what content they cover. The German law from 2017 (often called by its German abbreviation NetzDG) requires companies to remove, within 24 hours of receiving a complaint, content that is “obviously illegal” (in German: offensichtlich rechtswidrig). The exact corresponding French-language term for the German word for “obviously” – manifestement – is used to define the content in question here. The French law, however, goes a step or two further in that it doesn’t just require the removal of content that is “illegal,” as in the German law, but instead content that is “obviously hateful” (in French: manifestement haineux.) Because of this broader definition, there is also concern that it will be “difficult to determine” whether “content that falls into a gray area” can be considered hateful, particularly because Artificial Intelligence cannot reliably make these judgments and also because it will be difficult to find and train skilled moderators, especially when workplaces are still grappling with the impact of the coronavirus.

France, however, is not the first country to have explicitly modeled legislation regulating online content on the German prototype. From Russia’s “Fake News Law” from 2019 to Venezuela’s “Anti-Hate Law” from 2017, even countries without Western democratic structures of government have specifically referred to the NetzDG in drafting laws that appear aimed at curbing dissent. It therefore seems likely that concern over recent phenomena such as misinformation about COVID-19 spreading online will prompt yet more calls for monitoring and restricting online content, and that pre-epidemic proposals in Berlin to increase the scope of “anti hate-speech” laws will be looked at with greater urgency in Germany and other European Union members.

The Never-Ending Scandal: Volkswagen’s Diesels Appear to have Violated European Union Law, Too

For those who are doing business in Europe or who are subjected to European law because their customers reside within the territory of the European Union, the question of which law is applicable isn’t always clear or obvious. The fact most of the countries of the European Union (at least in normal times) do not control their borders with each other and share a common currency could make it seem initially that the situation is somewhat analogous to the United States. Namely that, generally speaking, a business entity is subject to the laws of the territory with which that business has certain minimum contacts – and selling products in a particular jurisdiction would almost certainly fulfill this requirement.

So, to use an example from a well-known US Supreme Court case from 1980, if Volkswagen sells cars in the state of New York, then the company could be reasonably expected to be subject to the laws of that state. But if Volkswagen does not have any dealerships in, say, Oklahoma (which is not the case now, but it was in the 1970s when this case arose), then an Oklahoma court cannot hear a case against the company, so Oklahoma law did not apply.

The European Union and Cross-Border Commerce

Unsurprisingly, Volkswagen – being the world’s second-largest auto manufacturer in the world – sold billions of Euros worth of Diesel vehicles in France that contained a device that tricked emissions tests and ultimately emitted far more pollutants into the environment than allowed. Unsurprising too is that Volkswagen would be subject to French law, and that eventually French authorities would pursue the company for its alleged violations.

But this is where the multi-layered nature of law within the European Union starts getting complicated. The French prosecutor’s office (the Procureur de la République in French) were investigating whether the company (widely believed to be Volkswagen, although referred to in French legal documents only as “Company X”) violated French consumer protection law. But whether it could be determined that “Company X” violated domestic consumer code (specifically French law dealing with deception of consumers, or tromperie) turned on a point of European Union law, namely whether the emissions device in fact runs counter to EU law.

French prosecutors then in 2018 referred the matter to the European Court of Justice in Luxembourg for a ruling on the (il)legality of the device in question since the issue of “deception” is “based on the interpretation of . . . European regulation.” In other words, if the device was found by the European Union court in Luxembourg to have violated European Union regulations, then it is likely that the (probably German, but also French and Italian) automobile manufacturer violated French consumer protection law.

The EU Advocate General Comes Down Against “Company X”

The French prosecutors seem to about to have their answer – the Advocate General to the European Court of Justice, Eleanor Sharpston of the United Kingdom (no longer an EU member, of course) on April 30 issued an advisory opinion stating that the device issue does, in fact, violate of EU regulations. And while this opinion is non-binding and the Court of Justice is free to rule independently of this guidance, the judges in Luxembourg seem to almost always follow such guidance, and a final decision should follow in several months. The matter then moves back to Paris and the French legal system, when presumably the true identities of the car manufacturers will finally be revealed.

Multi-Layered Law and Advisory Opinions in the EU

What might be striking from a U.S. point of view is not so much the fact that a matter of local (French) law turns on a point of federal (European Union) law. In the United States, state laws can and do set out a violation of federal law as an element of a cause of action that can be heard in that state. One example of this is the U.S. Supreme Court case from 1986, Merrell Dow Pharmaceuticals v. Thompson, which involved an Ohio consumer protection law that would grant a cause of action if there was a violation of the Federal Food, Drug, and Cosmetic Act. With European law being made not just in Brussels and Strasbourg but in 27 capitals of member states, the amount of interaction between (member-) state and federal (EU) law will only grow more intricate.

What makes today’s decision by Ms. Sharpston (available from the court right now only in French) unusual from a U.S. perspective is that French prosecutors are able to ask the European Court of Justice for an essentially advisory opinion on what is ultimately a matter of French law. A rough analogy might be if prosecutors in California asked the United States Supreme Court on whether Volkswagen’s emissions system violate EPA regulations to determine if VW violated California consumer protection law. For companies doing business with any European Union member state, the need to understand which layer of law is applicable to which of their activities is paramount. It’s not enough to simply abide by German law or French law or with Brussels—these systems interact in ways they seldom do in the United States since EU members are after all sovereign nations. Moreover, the European Court of Justice has a larger role in enforcing EU regulations that many might expect, such that EU judges may be involved in cases even where no EU-wide cause of action is implicated.

Ultimately, companies doing business in Germany need to keep a close eye on what’s going on not just in Berlin but in Brussels as well, and they must carefully consider the rulings coming from the High Courts in both Leipzig and Luxembourg.

Germany’s “Facebook Law” to be Tightened to Combat Far-Right Hate Speech Online

February 19, 2020 saw two events in Germany that illustrate that country’s struggle to grapple with neo-Nazi violence and hate speech online. In the morning, the Cabinet of Chancellor Merkel signed off on proposed amendments to a law that requires social media companies to act when made aware of postings that contravene German laws on personal insults, agitation against minorities, or threats of sexual violence. That same evening, a man in the town of Hanau near Frankfurt shot and killed nine people in two shisha bars, all of whom were either immigrants or had immigrant backgrounds. While so far there has been no indication that the shooter had any contact to neo-Nazi groups, the fact that he posted online a manifesto and videos containing racist and xenophobic sentiments is certain to intensify the debate on how to control online hate speech and what social media companies’ duties are under the law to combat this threat.

The Current State of the Law: the Netzwerkdurchsetzungsgesetz

Social media companies such as Facebook and Google operating in Germany are already subject to a 2017 law called the Netzwerkdurchsetzungsgesetz (abbreviated as NetzDG and sometimes informally called the “Facebook Law”) that requires them to act on certain kinds of postings. In cases in which a social media company with over 2 million users in Germany receives a complaint about “obviously illegal” content, that company must delete or block the post within 24 hours of receiving the complaint. This provision means that the social media companies themselves must decide what content is or is not a violation of applicable German law. Networks that fail to comply with the law can be assessed fines of up to 5 million Euros per violation.

Proposed Tightening of the NetzDG

While the proposed amendments to the NetzDG still need to be debated and ratified by the Bundestag (Germany’s parliament), social media companies will see their legal obligations multiply should the proposals indeed become law. In fact many of these proposed provisions have shown to be controversial, so some changes to the bill are likely before it is approved. Nevertheless, the changes are sweeping. Social networks will be required not only to delete or block illegal content but to also inform the German criminal office, the Bundeskriminalamt (roughly equivalent to the FBI), so that the authors of such content can be referred for prosecution. Most controversially, social networks would also need to provide the user’s IP address and account password. Furthermore, social networks would need to do this on their own initiative, rather than react to a complaint about such content, so they will need to begin monitoring their own content much more closely. Types of content that are covered under these proposals include disseminating propaganda of outlawed organizations (such as parties promoting an explicitly Nazi ideology), incitement against ethnic or religious minorities, and child pornography. And while the proposals seek to combat “right wing” extremism (in fact the impetus behind the changes was the assassination of a German politician by a neo-Nazi in June 2019), the provision that also covers content forbidding “preparation of acts of violence against the state” or “support for terrorist groups” could also extend to organizations such as ISIS.

Criticism of the Proposals Coming from All Sides

Seemingly nobody is happy with what these proposals would entail. The German Association of Lawyers (DAV, or Deutscher Anwaltverein) stated in a press release on February 26 that it finds the “planned expansion of the reporting obligations of the operators of social networks to be extremely problematic.” In particular, the amendments would encourage social networks to use Artificial Intelligence to identify and delete content automatically, and since “no software, however ‘intelligent’, can currently distinguish lawful from illegal or even punishable statements” this preemptive removal of content could constitute illicit censorship. The Association for Internet Economy eco (a private eCommerce organization) characterized the requirement to hand over a user’s password as a measure that would lead to widespread social distrust in technology since a password grants access to not merely the potentially illicit content at issue but potentially to a user’s entire digital life.

Further fears of censorship have been expressed across the German political spectrum. From the left side of the aisle, the newspaper Neues Deutschland (“New Germany,” which was once the newspaper of record of the Communist party that ruled East Germany) raised the possibility that “American digital enterprises” will determine the parameters of free speech in Germany since their “fear of state-imposed fines” would lead to content being deleted even if it is protected by law. The free-market oriented Free Democratic Party echoed this sentiment and stated that this law is a “Trojan horse for freedom of speech” that would create a “database of suspects” with the BKA.

What’s Next with the NetzDG?

Even though these proposals to the NetzDG were approved by Chancellor Merkel’s cabinet—specifically the Minister of Justice and Consumer Protection, Christine Lambrecht of the Social Democratic Party—the shape of the Internet in Germany at some point soon will be debated by lawmakers beneath the dome of the old Reichstag building in Berlin. Given that even organizations that were founded specifically to combat right-wing violence have been critical of a law intended to do just that, it seems likely that something will change when the final version is approved, probably this spring. Nevertheless, there seems to be a growing desire in Germany to do more somehow to stanch the increase in far-right activity (though not just online), and this bill might survive its many criticisms. Further complicating matters are the competing levels of law within the European Union which may offer social media users more privacy protections than the NetzDG foresees, although Brussels is unlikely to get involved at any point soon.

This debate does of course underscore once again the intricate legal landscape that binds Berlin and Silicon Valley. Nearly every piece in the German press discussing curbs on far-right hate speech references Facebook, Instagram, Google, or YouTube—all headquartered in the Bay Area—even if the problem is one that seems to have its most fertile ground in the still-disadvantaged regions of the former East Germany.

The European Commission to Announce Artificial Intelligence Policies This Week

This week the European Commission will release a draft of proposed policies outlining how the European Union will grapple with the rapid spread of Artificial Intelligence in just about every aspect of our lives. As the New York Times reports, these proposed regulations promise to be far-reaching enough to prompt Alphabet’s Sundar Pichai and Mark Zuckerberg of Facebook to travel to Brussels to meet with Margarethe Vestager, the Vice-President of the European Commission tasked with developing AI policy. The exact scope of the proposed regulations should be clearer when the Commission releases its report on February 19. However, Vestager has already called for “particularly high standards regarding transparency and accountability” in implementing AI.

The “European Values” Driving Artificial Intelligence Policies

The urgency with which the European Commission is formulating an EU-wide AI policy shows the importance that issues of technology and privacy are viewed within the European framework. When the current President of the Commission – the former German Minister of Defense, Ursula van der Leyen – took office on December 1 last year, she announced that Brussels will formulate a comprehensive AI policy in 100 days (in addition to separately formulating policies dealing with climate change and minimum wage levels in each EU member.)  

But the debate over the ethical implications of AI has been simmering in the EU for years. For example, in June 2018 the European Economic and Social Committee (EESC) held a “Stakeholder Summit” on Artificial Intelligence to discuss how Brussels can help guide the impact of AI on spheres such as legal and ethical challenges, social and economic impacts, and economic competitiveness. The EESC had also called for “a standardization system for verifying, validating and monitoring AI systems,” including a “uniform global code of ethics for the development, application and use of AI.” These statements point to a greater likelihood that creators of AI technology will have to contend with a singular (and comprehensive) Europe-wide system rather than a patchwork of policies depending on which country decides to tackle the issue, and how far-reaching that country is willing to regulate AI.

German Skepticism Toward AI

But another source of resistance in the EU for creators of AI technology just might be the consumers themselves. A recent survey asking Germans about their attitudes toward AI showed widespread resistance to smart-home technology, with 57 percent of respondents saying that would not want to live in a home in which AI assists people—even if that technology were free of cost. The reasons for such resistance included fears that personal data could be used illicitly, potential dangers of becoming too dependent on the technology, and a wish to avoid feeling “powerless” in the face of AI. An overwhelming majority of respondents – 85 percent – stated that products utilizing AI should be clearly marked and inspected by a independent authorities.

Brussels Will Outpace Washington in Setting Regulatory Frameworks for AI

While a debate about the ethical implementation of AI has by no means been absent from the United States—particularly discussion about how AI could either reflect or deepen already-entrenched biases—the issue has only recently been gaining traction in Washington. One effort to address the ethics of AI has been the Algorithmic Accountability Act introduced in 2019 aimed at avoiding disparate treatment and discrimination. But this bill would not in itself set guidelines for how AI should operate ethically but rather require the Federal Trade Commission to prepare such rules that would apply to companies developing AI. Given the current makeup of Congress the Act seems unlikely to be passed anytime soon, and even if it were the FTC would then need to go through the rule-making process (the Act requires the FTC to create such rules within two years.) Brussels on the other hand appears ready to act even if this week’s report might be less comprehensive than anticipated or does not take effect until a later date. And whereas the Algorithmic Accountability Act focuses mostly on combating bias and racial discrimination, the European Commission has been discussing AI in a broader ethical framework that encompasses more wide-ranging concerns about human dignity. It therefore seems likely that AI companies will need to consider the requirements of Brussels—especially given predominantly German concerns over technology and privacy—while seeing very little pushback (if any) from the U.S. Congress.

Volkswagen Diesel Scandal – Settlement Negotiations for VW Owners Break Down, But Consumers Still Likely to Receive Damages

More than four years after Volkswagen’s deceptive emissions practices were first uncovered, the company still finds itself wrestling with how to compensate consumers for their non-compliant vehicles. Today Volkswagen announced that negotiations with a German consumer advocacy agency, VZBV, for a financial settlement for VW owners have broken down. Nevertheless, it appears likely that VW owners will still receive some amount of compensation – but the VZBV looks as if it will walk away empty-handed.

The VZBV initiated the case against VW in the High Court in the German city in Braunschweig in September 2019 in on behalf of over 430,000 consumers. The plaintiffs are seeking compensation for the lost value of their vehicles as a result of Volkswagen’s cheating on vehicles’ emissions output and for drivers’ diminished ability to drive their cars since Diesels are prohibited from many German cities. Both parties have been negotiating since the start of this year for damages to be paid to Volkswagen owners. The VZBV received support from Germany’s largest automobile club, the ADAC, which is roughly the German equivalent of AAA in the United States.

In a press release today, Volkswagen announced that those settlement negotiations collapsed due to what it called an “unjustified demands” for € 50 million in attorney fees. This amount is additional to the €  830 million that both side agreed upon for VW owners. However, VW declared that it is prepared to pay that sum to those consumers who had joined the class-action suit and who bought their Diesel vehicles before 2016. The VZBZ stated that it was “perplexed” by Volkswagen’s announcement since they received a settlement proposal from Volkswagen just before learning that the company had broken off negotiations. The VZBZ further said that the negotiations had failed due to Volkswagen’s “unwillingness to allow for a transparent and trustworthy system . . . for a settlement.”

Whether the VZBV will continue proceedings against VW to recoup attorney fees remains to be seen. One thing that is significant about this case is the way it illustrates the new class-action structure in the German legal system. Prior to November 2018 plaintiffs could only bring individual lawsuits to recover damages. Under this new system, multiple plaintiffs can join a case and be represented by an organization that acts on their behalf in court. While class-actions are common in the United States, they are still a relative novelty in Germany, and they also differ from American class-action law suits in some significant ways. For example, should the case against VW succeed plaintiffs would still need to file their own proceedings against VW to claim damages since these can vary greatly from one consumer to another.  

Willkommen! Welcome!

Thank you for visiting German Legal Blog. My name is Roger Geissler, and I am an attorney licensed in California and based in the San Francisco Bay Area. Here you will find news and analysis about the latest developments in the legal field in Germany, Austria, and Switzerland, and how these developments might impact those doing business in not just German-speaking countries but Europe as a whole. While I might tend to focus a bit on privacy and copyright law, I will share any topic that can help you navigate the legal and business environments where German law has an influence.

About the Author

I am a graduate of UC Hastings College of the Law in San Francisco where I served on the editorial board of the Hastings Law Review. My published law review article investigated the ways in which German privacy law and cultural sensibilities about privacy influenced how Google Street View was rolled out in German.

I earned my undergraduate degree at the University of Pennsylvania in Philadelphia, where I studied Greek and Latin languages and literature. While born and raised in the United States, I am a former resident of Berlin and I consider German to be my second language. In my free time I enjoy swimming and running (including completing the Berlin Marathon in 2016 and the Oslo Marathon in 2019), spending time with my kids and wife, and most recently watching German baking shows on Netflix.

Bis bald! / See you soon!