Shaping the Right to Privacy. The Interplay between Karlsruhe, Strasbourg, and Luxembourg

Abstract

In Germany, the contours of the right to privacy are very much determined by case law. The European Court of Human Rights (ECtHR) has significantly and visibly shaped that right. Its decision in one of a set of cases involving Caroline de Monaco/Caroline von Hannover famously led German Courts to change their course. The first part of the paper is dedicated to recounting these iconic developments from the beginning of the 21st century, and to sketching out how the courts interacted with one another back then. The events concerned traditional, physical media publications.

Nowadays, the media landscape is more complex, and the number of players has grown. The same is true for the number of courts involved. We have witnessed this over the past few years, as European Courts have dealt with the so-called "right to be forgotten". Within a period of only a few years, the ECtHR, the Court of Justice of the European Union (CJEU), and the German Federal Constitutional Court all dealt with cases concerning the said right. The heart of this paper is dedicated to the way in which the courts interacted with one another. I will show how the three courts shaped the "right to be forgotten", and demonstrate that the courts’ interactions differed from the classical one which was on display in the von Hannover cases.

Keywords: privacy, right to be forgotten, European Convention on Human Rights, European Court of Human Rights, ECtHR, CJEU, Court of Justice of the European Union, GErman Federal Constitutional Court

JEL Classification: K10, K19, K39, K49