GERMAN FEDERAL CONSTITUTIONAL COURT PROTECTS THE RIGHT TO PRIVACY OF FOREIGN INTERNET USER

Image: Courtroom Building With Palace in the Background (57171)
German Federal Constitutional Court
© Bundesverfassungsgericht

Tuesday 19 May

The First Senate of the German Federal Constitutional Court ruled Tuesday 19-5-2020 that Germany’s Constitution protects the privacy of internet users living outside the country. The court decided that the Federal Intelligence Service, or the Bundesnachrichtendienst (BND), is bound by the Constitution when surveilling foreigners’ telecommunications and that the statutory basis for their current process of collecting and analyzing such data is unconstitutional.

The journalists who filed the complaints “report on human rights violations in conflict zones and in authoritarian states.” They argued that the 2016 amendment to the act, which conferred power to the BND to collect foreign correspondence, was unconstitutional.

Image: Courtroom (58022)
German Federal Constitutional Court
© Bundesverfassungsgericht

A press release summarizing the 122-page judgment stated that the statutory provisions allowing this kind of surveillance were unconstitutional because:

T]he surveillance is not restricted to sufficiently specific purposes and thereby structured in a way that allows for oversight and control. … Regarding the transfer of data, the shortcomings include the lack of limitation sufficiently weighty legal interests and of sufficient thresholds as requirements for data transfers.

The court ordered that the unconstitutional parts of the law be rewritten by 2021

This concept of the right to privacy is non-existent in the Indian context. The right to privacy was only recently developed as a constitutional right into India’s Constitution via the interpretation of Art 21 by the Supreme Court.

This judgement of the German Federal Court takes a step further from the limiting nature of constitutional protection that exists only to actual resident / citizen or a company incorporated in the country. The era of the internet that allows any person sitting in any part of the globe to use the services of Indian companies having their servers located in India. There is genuine need under the indian law to offer protection to constitutional right to Privacy to be extended to foreign nationals using services of indian companies.

See the order