Privacy protection in the global information society is today, perhaps more than ever before, a hotly-debated topic in Germany. I had the opportunity last week at a conference held in Berlin to exercise my free speech right while speaking on my favorite topic these days: Data Protection v. Free Speech law.
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 troubling 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.
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