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Mittwoch, 19. April 2017

Constitutional Complaint filed against EU Data Protection Regulation (2 BvR 865 17)

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.

Sarah Luzia Hassel-Reusing, Thorner Str. 7, 42283 Wuppertal (Germany)

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