National courts continue to try to interpret what the European Court of Justice's (ECJ) Google Spain v Costeja (Right to Be Forgotten) ruling means. On December 9, 2014, the District Court of Heidelberg (Germany) had to decide whether Google had to remove links to a web page which claimed to “expose” racists, i.e. the plaintiffs. The Court ordered Google to remove the links and awarded damages for the company's failure to remove the links promptly upon notification. The Court specifically referred to the ECJ ruling in its reasoning. In a different case, on November 7, 2014, the District Court of Hamburg had similarly ordered Google to remove search results which suggested that the plaintiff had owned a brothel.
These rulings have ignited heated debate. Prof. Johannes Masing, Justice of the German Federal Constitutional Court (Bundesverfassungsgericht) and rapporteur for all media related cases, has published his thoughts in Germany’s leading law blog. The blog post is based on a note which had been originally intended for internal use at the Court. Masing expresses “serious concerns” about the ECJ’s emphasis on extended intermediary liability and makes clear that he disagrees with the ECJ’s finding that the right to be forgotten “override[s], as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public.” Furthermore, he says that settled caselaw in the German Constitutional Court establishes “the presumption in favor of the permissibility of freedom of speech”. Information that has been lawfully published by third parties enjoys exceptional constitutional protection. That precedent would demand the opposite result in both these "right to be forgotten" cases.
Nevertheless, Masing does not say how exactly the German Constitutional Court could navigate between the ECJ ruling and German law. Even though he recognizes the superiority of European Union law, he indicates that he favors some kind of “concurrent protection of fundamental rights” that would establish a leeway for national courts. Indeed, Masing will have the opportunity to clarify his view on these points in a case regarding online archives (file number “1 BvR 16/13”), which is pending before the Constitutional Court and Masing will decide as part of the judging panel.