The Streisand Effect Case Might Have Played Out Differently In Germany
As you may know, The Streisand Effect was originally coined right here on Techdirt in 2005, though it referred back to an event from 2003 when Barbra Streisand sued Ken Adelman, because his project to map how erosion impacted the California coastline incidentally included a photo of Streisand's Malibu mansion.
Streisand demanded $50 million in damages ($10 million for each of five counts). It quickly came out that prior to the lawsuit, the photo had been accessed a grand total of six times, and two of them were by Streisand's lawyers. But after the lawsuit was filed, more than 420,000 people went to view the photo in the following month alone. California's anti-SLAPP law protected Adelman, and Streisand was eventually forced to pay $177,107.54 in legal fees, including $155,567.04 to Adelman.
The story is remembered for the effect I coined, in part because of the futility of trying to hide information, but in part because it's a reminder of the importance of free speech.
It's possible that story would go very differently in Germany today. We already know that Germany is much more sensitive to concerns about privacy and data collection, and when Google launched its useful Street View" feature in Google Maps, some people in Germany insisted it was a violation of their privacy. I have difficulty seeing how a single static photograph of buildings taken from public streets can be a privacy violation, but German regulators and plenty of residents insisted otherwise, so Google now lets residents blur out their own house in street view (and, tellingly, fewer than 3% of German households actually bothered to do so).
But now there's a new story, again in Germany, with a court ruling that Google Earth, which gives you satellite imagery of the world, somehow is the equivalent of spying on people in their homes, because the photos were taken without notice.
The German court ruled that Google acquired the aerial images by spying" on ordinary people because it does not inform property owners beforehand that their homes will be filmed and photographed. As a result, Google does not get their consent to publish aerial photos and information about their property on its Maps and Earth sites.
The German court determined that Google had violated the privacy of the man and his family by sharing aerial images of their property on Google Earth. It found that a person's right to privacy extends across their entire property, not just inside their home.
Nobody must accept the worldwide publication of aerial images of their property without their consent, at least when concerning areas of a property hidden from public view," the court says in the ruling, according to DW.
A German source (Google translated) suggests that the issue is the 3D models of buildings, including things hidden from Street View:
The case concerned whether a property owner can demand that their inhabited property disappear from Google Earth and Google Maps or be blurred. The plaintiff lives with his family in a house in Frankfurt. At his request, his house had already been pixelated in Street View and Apple Look Around. However, in Google Earth and the 3D view of Google Maps, it remained visible as a three-dimensional model - including the rear portions of the property that are not visible from the street.
That same source notes that there is conflicting caselaw in Germany already though:
The Frankfurt ruling stands in stark contrast to an earlier decision. The Itzehoe Regional Court dismissed a similar lawsuit on June 11, 2020 (Case No. 10 O 84/20 ). At that time, the court primarily based its decision on property rights: According to Section 905, Sentence 2 of the German Civil Code (BGB) , the owner cannot prohibit overflights at the altitude from which such images are taken. The court deemed the information discernible in the images too unspecific to infringe on the right to privacy. We reported on this previously: Itzehoe Regional Court: No right to pixelate a property in Google Earth .
The Frankfurt am Main Regional Court takes a different approach. It does not ask whether the overflight itself can be prohibited, but rather whether the worldwide publication of the images violates the general right of personality . For the injunction, it bases its claim on Section 823 Paragraph 1 of the German Civil Code (BGB) and Section 1004 Paragraph 1 of the BGB by analogy. Since 2020, the technology has changed: flat satellite images have become detailed 3D models that can be linked with other data. The Frankfurt ruling addresses this change.
Neither ruling is precedential until there are higher court rulings.
The court also brushed aside Google's argument that it was democratizing access to knowledge, admitting that was important, but saying that the privacy rights outweigh the access to information claims. Though the report notes Google may still appeal.
Maybe this is just cultural differences, but I find the whole thing bizarre. The court tries to limit this to parts of a property hidden from public view,' but that's what an overhead photo is: a periodically updated snapshot of what anyone in a plane could see. Ongoing or real-time surveillance might be a different story. A static image from the sky is not that.
But, I guess Barbra should have moved to Frankfurt if she wanted to keep aerial photos of her home off the internet.