Informational self-determination

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The right to self-determination is the right of Germany , in principle, the right of individuals themselves about release and use of their personal data to be determined. It is law of the Federal Constitutional Court a policy - a fundamental right that the Basic Law for the Federal Republic of Germany is not specifically mentioned. The proposal to insert a basic data protection right into the Basic Law has not yet received the required majority . Personal data are, however, protected according to the General Data Protection Regulation and Article 8 of the EU Charter of Fundamental Rights .

General

The concept of the right to informational self-determination goes back to a report by Wilhelm Steinmüller , Bernd Lutterbeck u. a. from 1971. The right to informational self-determination is an expression of the general right of personality and was recognized as a fundamental right by the Federal Constitutional Court in the so-called 1983 census judgment. The starting point for the Federal Constitutional Court is the so-called general right of personality (APR), ie Art. 2 Para. 1 GG in conjunction with Art. 1 Para.

The self-determination in the free development of personality would be jeopardized by the conditions of modern computing . Anyone who does not know or cannot influence which information regarding their behavior is stored and kept available will adjust their behavior out of caution ( see also: Panoptism ). This affects not only individual freedom of action , but also the common good , since a free, democratic community requires the self-determined participation of its citizens . "With the right to informational self-determination, a social order and a legal order enabling this would not be compatible, in which citizens can no longer know who knows what, when and on what occasion."

In the opinion of the European Parliament , the right to informational self-determination is also derived from Article 8, Paragraph 1 of the European Convention on Human Rights :

“ Everyone has the right to respect for their private and family life, their home and their correspondence. "

- ECHR Art. 8 para. 1

Based on this justification, the EU Parliament filed a lawsuit against the EU Commission because the mandatory storage of traffic data of EU citizens violated this regulation.

Protection area

The right to informational self-determination is broad. No distinction is made as to whether more or less sensitive data of the individual is affected. The Federal Constitutional Court found that among the processing and linking possibilities of information technology, even a date that is irrelevant in itself could gain a new status and that there is no irrelevant data.

Interventions

Restrictions on the fundamental right are possible, but require a legal basis. In doing so, the legislature has to weigh up the interests of the data subject in secrecy and the processing agency's interest in public information.

Restrictions are only permitted in the prevailing general interest . They require a legal basis that must comply with the requirement of standard clarity .

A distinction is made between measures that are taken without or against the will of the person concerned and those that are voluntary. For the former, the statutory authorization must also be “area-specific, precise and official aid-proof ” ( census judgment , BVerfGE 65, 1 [46]).

In addition, a distinction can be made between anonymized data that does not allow any conclusions to be drawn about the person concerned (e.g. for statistical surveys) and data that can be personalized. In the case of anonymized data, the purpose limitation is relaxed, for data that can be personalized there is a strict purpose limitation. The legislature must take precautions to prevent data misuse (procedural regulations, data protection officer , ...).

Effects

The right to informational self-determination became the basis for the existing data protection laws such as the Federal Data Protection Act or the state data protection laws and also influenced the development of Directive 95/46 / EC (Data Protection Directive) .

In recent times, too, the right to informational self-determination has played a major role in constitutional case law. For example, the grid search in North Rhine-Westphalia was declared unconstitutional if it only takes place on the basis of a “general threat situation”; the § 100c and § 100d Code of Criminal Procedure (the so-called Great bugging ) had a criminal offenses and are supplemented by explicit cancellation provisions ( BVerfGE 109, 279 ).

The right not to know is a “negative variant of the right to informational self-determination”.

spy

The spying out of private data out of a government interest is subject to strict restrictions. In accordance with the principle of legality, there is a general need for statutory regulation and, in accordance with the principles of the separation of powers, a court order. After a certain period of time, the spied must also be given knowledge of the process. An intended spying on stock will hardly come into law.

Most recently, the Federal Constitutional Court overturned the statutory regulations of the state of North Rhine-Westphalia as unconstitutional. Clarifications from the Federal Ministry of the Interior are expected for the relevant federal regulations.

agreement

In accordance with current case law (see above), any connection of personal data for the purposes of third parties requires approval if the legal entitlement of the parties involved is not to be restricted. For this purpose, agreements are possible that are made between the parties involved and thus document the express consent of the parties involved. A validity for third parties cannot be achieved by agreement between two parties. Conversely, an agreement between two parties cannot be canceled or become ineffective by an agreement with third parties.

In this respect, in connection with new techniques and procedures (technologies) it can be assumed that a violation of the rights of informational self-determination is technically possible, for example by means of location determination. However, to rule out this technical possibility as illegal in general is not a tenable position. This is confirmed solely by the known devices of mobile radio technology .

Violations

If a company uses recognizable personal data for the person concerned, the person concerned generally has a legal right to information about the storage of this data and the purpose of this data. If the storage goes beyond simple address data, the person concerned generally has a legal right to have the storage of this data deleted if he has no contractual relationship with the company ( see also: Federal Data Protection Act: Rights of those concerned ).

If a company becomes annoying, for example through advertising campaigns, the person concerned can obtain information in each individual case by means of a formal letter stating the address. If the company does not provide any information, the person concerned can use legal means to obtain information and deletion by issuing a warning from a lawyer or by taking legal action in court. The person concerned bears the costs initially.

See also

literature

  • Spiros Simitis : The informational self-determination - basic condition of a constitutional information system. In: Neue Juristische Wochenschrift 1984, pp. 398–405.
  • Klaus Vogelgesang: Basic right to informational self-determination? Nomos publishing company. Baden-Baden 1987. ISBN 3-7890-1446-X .
  • Hans-Ullrich Gallwas : The general conflict between the right to informational self-determination and freedom of information. In: New legal weekly. 1992, pp. 2785-2848.
  • Reinhard Riegel: Data protection at the security authorities. 2nd Edition. Heymanns, Cologne 1992, ISBN 3-452-22446-5 .
  • Helmut Bäumler, Astrid Breinlinger, Hans-Hermann Schrader (eds.): Data protection from A – Z. Luchterhand, Neuwied 1999, ISBN 3-472-03332-0 (keyword “informational self-determination”).
  • Marion Albers: Informational self-determination. Nomos-Verlag, Baden-Baden 2005, ISBN 3-8329-1133-2 .
  • Wilhelm Steinmüller: The right to informational self-determination - How it came about and what you can learn from it. In: Recht der Datenverarbeitung 2007, pp. 158–161. (a slightly different version (PDF; 108 kB) can be found in FifF-Kommunikation 3/2007)
  • Uwe Krähnke: Self-determination. For the social construction of a normative guiding principle. Velbrück Wissenschaft, Weilerswist 2007, ISBN 978-3-938808-11-5 .
  • Martin Rupp: The state's fundamental legal duty to protect the right to informational self-determination in the press sector . Alma Mater publishing house, Saarbrücken 2013, ISBN 978-3-935009-55-3 .
  • Horst Völz : That is information. Shaker Verlag, Aachen 2017, ISBN 978-3-8440-5587-0 .
  • Andréa Belliger , David J. Krieger : Network Publicy Governance. On Privacy and the Informational Self . transcript, Bielefeld 2018, ISBN 978-3-8376-4213-1 .
  • Horst Völz : How we got to know. Not everything is information. Shaker Verlag, Aachen 2018. ISBN 978-3-8440-5865-9 .

Web links

Individual evidence

  1. ↑ Steinmüller, Lutterbeck, Mallmann, Harbort, Kolb and Schneider: Basic questions of data protection. In: Appendix to BT-Drucks. VI / 3826. Retrieved April 16, 2019 .
  2. ↑ BVerfG, judgment of the First Senate of December 15, 1983, 1 BvR 209/83 u. a. - Census -, BVerfGE 65, 1 .
  3. ↑ See under C II 1. of the census judgment, marginal number 152.
  4. ↑ BVerfG: judgment of the First Senate of December 15, 1983 (1 BvR 209/83, Rn. 146) . Federal Constitutional Court. December 14, 1983. Retrieved May 13, 2019.
  5. ^ BVerfG, decision of the First Senate of April 4, 2006, 1 BvR 518/02 - Rasterfahndung - , BVerfGE 115, 320 .
  6. ↑ OLG Celle, judgment of October 29, 2003, Az. 15 UF 84/03, NJW 2004, pp. 449–451.
  7. ↑ BVerfG, judgment of the First Senate of February 27, 2008, 1 BvR 370/07 u. a. - Online search / basic computer right - , BVerfGE 120, 274 .
  8. ↑ The technical basis for the Internet of Things
  9. ↑ Positioning, locating people and devices via GPS, cellular network or WLAN ( Memento from July 15, 2009 in the Internet Archive )