Connectivity
and the Diffusion of Power – Constitutional Complaint filed
against EU Data Protection Regulation (2 BvR 865 17)
19.04.2017
| Unser Politikblog
Freedom
of speech in danger – Will politicians, journalists, bloggers,
human rights activists, and people wearing hearing aids soon have
nothing to say anymore in Europe?
 |
| (c) Sarah Luzia Hassel-Reusing |
At
Thursday, the 13.04.2017, at 21.20, the human rights activist Sarah
Luzia Hassel-Reusing has in time file a constitutional complaint
against the EU Data Protection Regulation (file number (EU)
2016/679), including applications for interim injunction (one of
those for urgent interim injunction ) and rejection of two judges for
presumed bias regarding „breaking up and pushing aside the eternity
guarantuee (art. 79 par. 3 Basic Law)“ and „bias regarding
Bilderberg“. With letter of the 12.04.2017, the European
Parliament, the EU Council of Ministers, the EU Commission, the
Federal Government, the Bundestag, and the Bundesrat have been
informed about the filing. The constitutional complaint claims the
violation of the basic rights to human dignity (also in connection
with the peace principle), to freedom, to freedom of speech, of
information, and of the press, to freedom of occupation, to property,
to the guarantuee of the course of law, and to vote, as well as of
the universal human right to freedom of speech and of information.
Her attention had been attracted to the draft regulation by the guest
article „Ein Abschied von den Grundrechten“ („a goodbye to the
basic rights“) by constitutional judge Prof. Dr. Johannes Masing of
the 09.01.2012 in the newspaper Süddeutsche Zeitung.
The
EU Data Protection Regulation, which has been concluded at the
14.04.2016, is a tool for censorship and surveillance, which is
unique in this form, and which is going to be implemented from the
25.05.2018 on in all 28 EU member countries. And that, even though
the EU is not entitled at all in its treaties, to set law on data
protection, which obliges, in addition to the institutions of the EU
and of the member states, also private persons. The constitutional
complaint directs itself directly against the EU regulation, because
it is directly applicable and ultra-vires (exceeding the EU's
competences). And in this case only filing the complaint directly
against it can suffice in view of the obligation of the
Constitutional Court, which has been established in the Lisbon
Judgement and in the Maastricht Judgement, to control the EU law not
only regarding the basic rights, but also regarding ultra-vires.
One
has given the impression to the politicians in the European
Parliament and in the Council of Ministers, that the aim was mainly
to set limits to corporations like Facebook and Google. Or even to
learn from the revelation of the NSA scandal by Edward Snowden. But
Viviane Reding has made clear in the interview with her, published at
the 01.09.2013 in the DGAP magazine „Internationale Politik“,
that the NSA scandal has been used in favour of the EU Data
Protection Regulation, and that the latter has not been made to
restrict the spying by secret services in any way („Prism
war für uns ein Weckruf. Die EU-Datenschutzreform der EU ist Europas
Antwort.“ „Prism has been a wake up call for us. The EU data
protection reform is the answer by Europe.“) („Regeln, wie sich
Geheimdienste zu verhalten haben, sind das eine, Regeln zur
Gewährleistung des Datenschutzes das andere. Es sollte niemanden
überraschen, dass Geheimdienste im Geheimen handeln. Doch wenn ein
Geheimdienst auf dem Territorium eines Mitgliedstaates operiert, dann
sollten die jeweiligen Regierungen sicherstellen, dass die nationalen
Regeln eingehalten werden. Das hat nichts mit der EU zutun.“ „Rules
how secret services have to behave are one thing, rules for the
guarantueeing of data protection another. Noone should be surprised
that secret services operate secretly. But when a secret service
operates on the territory of a member state, then the respective
governments should make sure, that the national rules are respected.
That has nothing to to with the EU“).
In
the contrary, the regulation is against the Edward Snowdens and
Julian Assanges as well as against those people who collect
unconfortable peace of information from publicly accessable sources
and combine them.
Also
the direct influence ob the Bilderberg conference (2011 clearly
visible on the point of the agenda „connectivity and the diffusion
of power“) on the direction of the EU Data Protection Regulation
and on the responsible EU Commissioners Neelie Kroes (2011) and
Viviane Reding (2013 and 2014) seem to have been unnoticed by the
politicians. By means of the internet, today the detection and the
revelation of the insertion of propaganda by think tanks and other
stakeholders via embedded journalists and media owners into, apart
from that, free media, succeeds faster and faster.
The
more than reversal of this trend and the stopping and deterring of
unconfortable freely speaking people, by means of fines and of
prohibitions of activities, is the main goal of the EU Data
Protection Regulation, data protection is only secondary for it.
That's why it hits particularly bloggers, politicians, and human
rights activists.
Any
inhabitant of the EU member states can, from the 25.05.2018 on, in
his quality as a „processor“, be hit be fines of up to
10,000,000.- € respectively of up to 20,000,000.- € and by
prohibitions of „processings“ – imposed by a supervision
authority, which in turn is free from any supervision. Because anyone
is not only an „affected person“ with data worth to be
protected, but also „processor“ in many areas. One is already a
„processor“, if one, beyond the scope of family and personal
friends, says something about other persons, and uses for that either
automatical / half-automatical devices (e. g. internet site, email,
telephone, fax, letter written with a computer, book, newspaper,
magazine, hearing aid, throat microphone, loud speaker, microphone,
megaphone) or a „data system“ (e. g. computer file, index-card
system, book, organized press cuttings). The upper limits of the
fines are out of proportion to any half-way probable amounts of
damage caused by violations of data protection, and are obviously
more shock strategy than proportionate. The up to 20,000,000.- €
can hit you particularly, if you can prove no consent by the person,
on whom you talk, and also no justified interest. What a justified
interest is, can than be fought out before the courts, because the EU
Data Protection Regulation has not defined that. If one talks
publicly without a proven consent about political views of other
people, then one needs not only a justified interest, but the
affected persons need to obviously have made public their views by
themselves. It costs also up to 20,000,000.- €, if you do not give
to the affected person enough pieces of information, e. g. including
the purposes, regarding the intended statements. The fine is also
impending, if an affected person, withdraws, with effect for the
future, his consent to a publication, and if you then are not able,
besides the deletion of the respective publication, to put through
the deletion of all links to it, as far as the supervision
autothority regards that as reasonable.
Even
if the consents by all „affected persons“ are available, it can
cost up to 10,000,000.- €, if the supervision authority holds the
opinion, that records, impact assessments, or (in cases of
„processings“ with a probably high risk for the rights and
freedoms of affected persons) prior consultations of the supervision
authority are missing or insufficient. And that all is required,
before you even start reading to prepare yourself for the intended
statement. A legal safety against that is unfeasable, because it is
unclear, how detailed the supervision wants the records and the
impact assessments to be, and in how far it will accept the
summarizing of several similar processings together in one impact
assessment, and in how far it will sanction that. While the
inhabitants of the EU member states, in their quality as „affected
persons“, are used for the seemingly legitimation of the
ultra-vires EU Data Protection Regulation, they are, in their quality
as „processors“ surveilled together with the data they have
collected regarding other „affected persons“, and obliged to
self-surveillance. That is the opposite of data protection.
And
the prohibitions of „processings“, that can be imposed by the
supervision authority, are so openly formulated, that they can be
interpreted not only as de facto prohibitions of activities, but even
as de facto prohibitions of professions, because the processing of
personal data is necessary in nearly all professions and unpaid
activities.
The
EU Data Protection Regulation, in addition to that, obliges the
member states, to define exemptions for the protection of the
freedoms of speech and of the press; but that helps no sooner than
the respective member states uses that instrument. The regulation
also contains exemptions particularly in favour of the economy (e. g.
regarding the records and for purposes of the conclusion of
contracts) and in favour of the pursuit of legal claims.
Politicians,
human rights activists, bloggers, and people with hearing aids, just
as the constitutional plaintiff, are fully hit by the EU Data
Protection Regulation.
Policy
requires, in the electoral campaign as well as for the contribution
to the public opinion, to even short-term make public statements on
concrete people, to advertise for party colleagues as well as to
critize the competitors in a way respecting the human dignity, also
without requesting permission for every statement. And in order to do
that seriously and on a solid basis, one must be able to read
articles and books, without having to make each time before that
comprehensive impact assessments and information on purposes to a
supervision authority. With the EU Data Protection Regulation, in
constrast to that, the question when the supervision authority
controls which politicians and political parties, decides which of
them leave the competition already before the elections because of
fines up to 20,000,000.- € and because of prohibitions of
processings.
Human
rights activists are hit, besides regardings statements, particularly
regarding public letter campaigns, regarding informing the public on
constitutional complaints, and regarding communication with
international human rights bodies.
The
main focus in on bloggers, who without payment (and so also without
the allevations for professional journalists) talk and write about
other people. In many countries, they have meanwhile become an
important supplement to the state press and to the commercial press -
and sometimes even as one building stone for the communication needed
for the preservation of peace, as the constitutional complaint shows
at the exemple of the 31.08.2013.
Also
people with hearing aids are affected, as far as they use their
devices not only for the communication with friends and relatives,
but also in the public area like e. g. in their profession and in
their unpaid public activities, in the course of which particularly
the frequent request for consents will be ashaming to many people.
And alone in Germany, there are, according to Statista, 1.88 million
people with hearing devices, more than there are active politicians
in this country.
The
constitutional plaintiff and her representative applied for the
hearing according to art. 22 par. 1 s. 4 BVerfGG, are available for
interviews.
For
further peaces of information, see the text of the constitutional
complaint.
V.i.S.d.P.:
Sarah
Luzia Hassel-Reusing, Thorner Str. 7, 42283 Wuppertal (Germany)
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