This paper is part of the e-conference on « Data protection Issues and Covid-19: Comparative Perspectives » which consist in a daily publication at 12 p.m. (GMT+1) except on Sundays until the Summer break. A new session will start again at the beginning of the academic year 2020-21. Please subscribe to blogdroiteuropeen, so you don’t miss a publication. This e-conference was organised by Dr. Yseult Marique, Senior Lecturer at the University of Essex and FÖV Speyer and Dr. Olivia Tambou, Associate Professor at the University of Paris-Dauphine, External Scientific Fellow at the Max Planck Institute of Luxembourg, and Founder- Editor of Blogdroiteuropeen. If you are interested to contribute for our September session feel free to contact us at firstname.lastname@example.org
Why German Constitutional Law guarantees a Right to Online Education in Line with Data Protection
While in Germany the signs are generally pointing to relaxation and, with Thuringia, the first state as already removed many corona measures, one area of society is still firmly caught in the grip of the pandemic: the education system. After all schools across Germany closed down three months ago and classroom teaching is only slowly being restarted, a return to normal attendance is not expected until the Autumn at the earliest. This makes it all the more important to strengthen digital teaching methods in the long term.
Data Protection as an Excuse for the Lack of E-Learning?
The hurdles to the success of e-learning are not only technical and pedagogical, but also legal. Above all, data protection law regularly serves as an argument for schools to offer their students either no or only very few online services. Many schools lack their own infrastructure and feel that it is too risky to resort to commercial learning platforms or video conferencing services.
Those responsible in the schools can hardly be blamed for the situation. After all, the state data protection authorities are openly warning against popular services such as Zoom or Microsoft Teams, and even a glance at the law won’t help. There is not the “one” law that could provide clarification. It is true that the GDPR applies as a matter of priority – also in the education sector. However, as is well known, the EU legislator has left it up to the Member States in many areas to continue to issue their own data protection regulations. For example, Article 6 (1) (e) and (2) GDPR allows the processing of personal data for the performance of public tasks like school education.
Complex Legal Framework in the Education Sector
Since in Germany the competence for cultural affairs – both legislative and executive power – lies with the Länder (cf. Article 30 and Article 70 et seqq. Grundgesetz), there are sixteen different regulatory frameworks for data protection in the education sector. While there is a special school data protection law (Schuldatenschutzgesetz) in Bremen alone, the general school law and administrative regulations as well as general provisions in the state data protection laws are decisive in the other states.
At the same time, the schools, as public authorities, do not have to fear any administrative fines from the data protection authorities in the event of data protection violations, since state law has exempted them from such fines (cf. Article 83  GDPR). Nevertheless, fines against individuals remain possible. The Thuringian DPA, for example, recently declared its intention to take actions against teachers if they have used online educational tools on their own initiative that pose a data protection risk.
The prevailing legal uncertainty leads to the result that in many cases e-learning means that teachers send assignments to their students by e-mail at best. With which knowledge students emerge from the crisis will therefore often depend on their social environment and technical equipment. Thus, the corona pandemic also increases existing inequalities in the education system. So far, ordinary law has not provided students with sufficient legal protection against this unfair situation (see, e.g., Oberverwaltungsgericht Berlin-Brandenburg, case OVG 3 S 31/20 ).
Constitutional Rights as Claims to Social Provisions by the State
The provisions of the German Basic Law (Grundgesetz) could, however, imply that the Länder are obliged to provide e-learning opportunities that comply with data protection law in order to fulfil their educational obligations. This is because although the German fundamental rights are mainly designed as rights of defence against the state (status negativus), they also include claims for a certain provision of services (status positivus). This is primarily the case when the individual is dependent on prior action by the state in order to be able to exercise the respective fundamental right.
The Right to Informational Self-determination as a Basis for a Claim?
An individual claim to education that complies with data protection could arise from the right to informational self-determination. The Federal Constitutional Court derived this fundamental right from the general right of personality (Article 1  in conjunction with Article 2  Grundgesetz) in its 1983 census ruling (BVerfGE 65, 1, 43).
This right to informational self-determination guarantees that the individual can, in principle, decide independently on the disclosure and use of his or her personal data. However, if a right sets up a standard for independent decision, this means that it is mainly designed for protection purposes. It does not establish a claim to benefits from the state in the form of (educational) offers that comply with data protection. In fact, the state already protects this fundamental right by not processing any personal data of students at all. The fundamental right may only be affected when schools oblige their students to use online services that do not comply with data protection regulations.
The Right to Participate in Existing Public Educational Institutions as a Basis for a Claim?
A general right to education from which a claim to certain forms of teaching, such as e-learning, could be derived is not provided in the German constitution, nor has the Federal Constitutional Court approved such a right (see e.g. BVerfGE 45, 400). However, the Court has derived a right to participate in the existing public educational institutions from the freedom to choose an occupation (Article 12  Grundgesetz), the principle of equality (Article 3  Grundgesetz) and the principle of the welfare state (Article 20  Grundgesetz) (cf. in particular BVerfGE 33, 303, 332). The origin of this judgment was a lawsuit against the admission restrictions in medical schools. Yet the conclusions of the court can also be applied to the current situation in the German school system.
Since approx. 90% of schools are in public hands, it is up to the Länder to guarantee access to education on the basis of their « monopoly position ». In times of COVID-19, access to education means sufficient digital learning opportunities. If the pandemic were to require reduced classroom schooling for months to come, those students whose schools do not have an appropriate e-learning infrastructure would be denied proper access to education (cf. Verwaltungsgericht Berlin, case 3 L 167/20 ). This would violate their right to participate in existing public educational institutions – assuming that classes are being taught online at other schools in the same state and that the entire education system is not at a standstill.
Proposed Solution: Combining both Rights into a Claim
The Länder do not, however, fulfil their fundamental rights obligation by providing e-learning opportunities regardless of their impact on data protection. This would violate the students’ right to informational self-determination. Consequently, in times in which regular education can no longer be guaranteed solely through classroom teaching, the Länder must equip their schools with information technology infrastructure that conforms to data protection requirements. This follows from the right to participate in education in conjunction with the right to informational self-determination. A claim that also applies to students at the still closed universities.
The only limit to this obligation by the Länder is the « natural scarcity » of resources, i.e. the financial challenges of providing all educational institutions with sufficient IT equipment. However, this is only a question of how to implement a constitutional necessary obligation.
For more information on the context of this e-conference and the other papers see
Don’t miss the next paper tomorrow at 12 p.m. (GMT+1), Data protection and freedom of information in Hungary: The latest casualties of COVID 19?, by Petra Láncos