Census judgment

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The census judgment is a fundamental decision of the Federal Constitutional Court of December 15, 1983, with which the basic right to informational self-determination was established as an outgrowth of the general right of personality and human dignity . The judgment is considered a milestone in data protection . The occasion was a census planned for April to May 1983 in the Federal Republic of Germany, which was only carried out in a modified form due to the judgment in 1987 .

Development of judgment

According to the provisions of the Census Act, a census should take place in the spring of 1983 in the form of a census . The registration should be carried out door-to-door by civil servants or representatives of the public administration, since a register comparison by the authorities was considered to be too error-prone. In addition to the full head count, it was also intended to collect further information.

Several constitutional complaints were made against this federal law . On April 12, 1983, the first oral hearing took place before the first senate of the Federal Constitutional Court, which on the following day issued an interim decision based on the applications of the Lüneburg law student Gunther Freiherr von Mirbach and the Hamburg lawyers Maja Stadler-Euler and Gisela Wild Order suspended the implementation of the Census Act pending a decision on the constitutional complaints.

Both the federal government and all state governments, with the exception of the Senate of the Free and Hanseatic City of Hamburg , considered the census law and the project to be constitutional.

The Federal Constitutional Court contradicted this: After further oral hearings on October 18 and 19, 1983, it found in its judgment of December 15, 1983 that numerous provisions of the Census Act significantly and without justification intervene in the basic rights of the individual. It declared these regulations null and void and the entire federal law unconstitutional, since it violated the complainants' right to informational self-determination . The Federal Constitutional Court derived this right from Article 2, Paragraph 1 of the Basic Law (GG), the right to free development of the personality , and from Article 1, Paragraph 1 of the Basic Law, the inviolability of human dignity .

Key message

The Federal Constitutional Court justifies the recognition of the right to informational self-determination as a property protected by the Basic Law on the basis of the endangerment of the liberal basic order through data collections uncontrolled by the person concerned under the conditions of modern information technology. Those who do not know or cannot influence which information regarding their behavior are stored and kept available should adjust their behavior out of caution ( 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.

The central point of the decision (under C II 1 a) reads:

“The right to informational self-determination would not be compatible with a social order and a legal order that enables it, in which citizens can no longer know who knows what about them, when and on what occasion. Anyone who is unsure whether deviating behavior is noted at any time and permanently stored, used or passed on as information will try not to attract attention through such behavior. […] This would not only impair the individual's chances of development, but also the common good, because self-determination is an elementary functional condition of a free, democratic community based on the ability to act and participate in its citizens. From this follows: Free development of the personality under the modern conditions of data processing requires the protection of the individual against unlimited collection, storage, use and disclosure of his personal data. This protection is therefore encompassed by the fundamental right of Article 2, Paragraph 1 in conjunction with Article 1, Paragraph 1 of the Basic Law. In this respect, the basic right guarantees the individual's right to decide for themselves how their personal data are disclosed and used. "

It also says there:

"Anyone who expects that participation in a meeting or a citizens' initiative will be officially registered and that risks may arise as a result, will possibly forego exercising their respective basic rights (Articles 8, 9 GG)."

Restrictions on informational self-determination are only permitted on a legal basis, for example in accordance with the Microcensus Act or the Federal Statistics Act. The Federal Constitutional Court expressly stated that there was “no irrelevant date”. Rather, the use of all personal data requires special justification.

Effects

The census ruling had an influence in particular on the Federal Data Protection Act , which was amended in 1990, and the data protection laws of the federal states .

In addition, the law on statistics for federal purposes and the corresponding state laws as well as countless laws on individual statistics were designed in accordance with the requirements of the census judgment, including a wave of structural measures for data security in the relevant offices.

At the ceremony marking the 25th anniversary of the census ruling, the President of the Federal Constitutional Court, Hans-Jürgen Papier , said that the census ruling with the constitutional court ruling on online searches of February 27, 2008, had now had a little sister in the rebalancing of freedom and security .

The German Bundestag has so far not been able to submit a law with a majority that comprehensively permits the requirements of proper administration with regard to anonymised data collection. Instead, individual surveys for certain precisely defined issues are now based on the decisions of European administrations.

See also

literature

Web links

Individual evidence

  1. ↑ BVerfG, judgment v. December 15, 1983, Az. 1 BvR 209, 269, 362, 420, 440, 484/83
  2. ↑ BVerfGE  64, 67.
  3. ↑ BVerfGE 65, 1
  4. ↑ Data protection is still insufficient despite 25 years of informational self-determination. In: Heise online . Retrieved May 20, 2010 .
  5. ↑ Microcensus 2013, explanations on p. 66 ( Memento from October 31, 2014 in the Internet Archive )