REMEMBRANCE IN TIME - Index of

400
Remembrance in Time
§ 3 section 1 BDSG, which includes in the term “personal data” all details of personal or
material circumstances of an identified or identifiable natural person. Although the term
“data” is used, the courts apply this definition (because of the linguistic proximity and its
comparability) on the term “personal information” used in the Stasi Records Act. In
addition, the Federal Data Protection Act gives also an explanation for the term “make
the data anonymous” which is required by the Stasi Records Act. According to
§ 3 section 6 BDSG the anonymous making of data is reached, when the details of
personal circumstances can no longer be assigned or only with a disproportionate amount
of time, cost and labor, to an identified or identifiable natural person.
If it is such personal information, the Stasi Records Act requires (depending on the
individual case) before publication or access to the documents again a balancing of
interests (see§ 3 section 3 StUG):
"... through the provision of information, the permitting of access to
documents or the issuing of documents may not infringe overriding
legitimate interests of other people...."
“… durch die Auskunftserteilung, Gewährung von Einsicht in
Unterlagen oder die Herausgabe von Unterlagen dürfen überwiegende
schutzwürdige Interessen anderer Personen nicht beeinträchtigt
werden….”
In order to make such an assessment of interests all the various interests are set against
each other. Such an intervention can only be legitimized when the interests of the other
person are predominated. For this purpose, the various circumstances of life can be
divided into spheres (areas of protection - Schutzbereiche). The private, inner region is
the most protected and this protection wears off the more the affected areas of life are
related to business, economic or public context. 30
On the side of the person concerned the load of the infringement must be taken into
account. In general the disclosure of true facts must be accepted (under the consideration
of proportionality), while disclosure of untrue facts must not be accepted. In addition, the
severity of the impairment, the reason for the previous behavior of the person concerned
(i.e. as a member of the Stasi), whether the person concerned was forced to work for the
Stasi or did it under his own free will and the public appearance of the person concerned
must be considered. 31
On the side of the intervening person (the person requesting the access)it has to be
taken into account which means of intervening (and location of intervening is selected),
the status of the activity(for example, freedom of information), type and duration of the
interference with the rights of the person concerned and the purpose (private or public) of
the intervention. Moreover, the circumstances, the severity of the intervention and the
specific justification for the acquisition of the information are to be considered. 32 Again it
may also be relevant in which sphere the intervention takes place. 33
30 Cf.Geigel, Haftungsprozess, Kapitel 23 Rn. 18.
31 SeeGeigel, Haftungsprozess, Kapitel 23 Rn. 18 (withfurtherliterature).
32 Geigel, Haftungsprozess, Kapitel 23 Rn. 18.
33 Siehe Di Fabio, GG Art. 2 Rn. 181.