Court of Justice: Schrems v. Data Protection Commissioner

On 6 October 2015, the CJEU delivered its judgment on a preliminary reference from an Irish court in matter of data protection.

An Austrian user of Facebook made a complaint to the Irish Data Protection Commissioner, asking the authority to prohibit Facebook Ireland from transferring his personal data to the United States, because of the non-adequate level of data protection in the country. The Commissioner rejected the complaint, pursuant to the Commission’s Decision 2000/520, the “Safe Harbour Agreement” which consider adequate the U.S. data protection law.

The Irish High Court reviewed the Commissioner’s decision, and asked the CJEU to rule on whether the Commissioner was absolutely bound by the Commission’s decision on US law, and whether the Commissioner should instead carry out its own review of US law.

The CJEU ruled that the Data Protection Directive must be interpreted as meaning that a Commission decision does not prevent a national authority from examining a claim from an individual about the level of data protection.

The Court also examined whether the Commission’s decision complied with the Data Protection Directive and the EU Charter of Fundamental Rights, concluding that it was invalid, because the Commission did not state that the United States in fact ‘ensures’ an adequate level of protection by reason of its domestic law or its international commitments.

A new Safe Harbour Agreement is currently being negotiated between U.S. and EU. In the meanwhile, the transfer of European data to the U.S. could be made under model contract clauses.





Germany: online archives and the right to be forgotten

On July 7, 2015, the Hamburg Court of Appeal decided that the “right to be forgotten” can also be asserted vis-à-vis by the operator on an online archive.

The claim, against the publisher of a national daily newspaper,  was about the availability of old news in an online archive. In particular, this archive included some articles regarding a criminal suit against the claimant. He complained that these articles could be found among the top three search results on google.de by entering his name.

The Hamburg District Court dismissed the complaint in its judgment, stating that the plaintiff was not entitled to ask the publisher to delete or amend the articles in the archive, because of the absence of damages to his fundamental rights.

Instead, the Court of Appeal stated that, although the claimant didn't have the right to obtain the deletion of the articles from the online archive, the appeal was well-founded insofar as he called for the defendant to modify the articles in question in such a way that they did not appear in lists of search results when his name was entered into internet search engines, in order to protect his public reputation  (pursuant to the 1004(1), first sentence of the Bürgerliches Gesetzbuch (Civil Code - BGB) in conjunction with general personality law).





Freedom of Expression: new guidelines

On May 12, 2014, the Council of the European Union adopted the EU Guidelines on Freedom of Expression Online and Offline, in order to: (i) explain the international human rights standards on freedom of opinion and expression,  (ii) provide a guidance to officials of the EU Institutions and member states for their work in third countries, (iii) contribute to preventing potential violations of the right to freedom of opinion and expression.

Hence, the guidelines identify some priority areas: a) combating violence, persecution, harassment and intimidation of individuals, including journalists and other media actors, because of their exercise of the right to freedom of expression online and offline, and combating impunity for such crimes; b) promoting laws and practices that protect freedom of opinion and expression; c) promoting media freedom and pluralism and fostering an understanding among public authorities of the dangers of unwarranted interference with impartial/critical reporting; d) promoting and respecting human rights in cyberspace and other information and communication technologies; e) promoting best practices by companies; f) promoting legal amendments and practices aimed at strengthening data protection and privacy online/offline.

The guidelines identify the following tools in order to ensure the protection of the freedom of expression: a) political dialogues and high level visits; b) monitoring, assessing and reporting on freedom of expression; c) public statements and demarches; d) financial instruments; e) public diplomacy in multilateral fora; f) media freedom and pluralism in the EU enlargement policy; g) promoting Council of Europe and OSCE acquis; h) trade measures; i) training and technical exchanges; l) capacity building.

Germany: the first decision of the ZAK in matter of virtual product placement

On April 15, 2014, the Kommission für Zulassung und Aufsicht issued its first decision in matter of virtual product placement.

The decision was about a 15-second sequence of a poster advertising in the film “Hansel &Gretel: Witch Hunters” (RTL2 programme “Berlin Tag & Nacht”, 2013). In the opinion of the Kommission, the sequence did not breach the Land media authorities’ advertising regulations, because the product placement did not appear artificial and forced, as well as it respected the regulation on the matter, like labelling, independence of the broadcaster, no excessive prominence of the product).

Germany: surreptious advertising

On March, 9 2015, the Bavarian Administrative Court, ruled that the repeated appearance of a logo during a television programme constitutes illegal surreptitious advertising. 

The case no. 7 B 14/1605 concerned the broadcast of the programme ‘Learn from the Pros’ by TV channel Sport1, in which the logo of an internet provider was showed in every shot and in particular when viewers were paying particularly close attention. Moreover, at the end of the programme, viewers were encouraged to visit the website of the internet provider.

In the opinion of the Court, the intensity and the frequency of the logo in the programme, as well as the lack of an advertising label demonstrated the intention to mislead the viewers.