The protection of personal data, personality, and privacy is implemented in the rule of law at various levels. One of them is the protection of data relating to an individual, a natural person, and giving evidence about them in one way or another. A specific case is the protection of personality in archives and records. This is closely linked to the broad area of archival methodology and practice, commonly referred to as access to archives. At the same time, it enters a distinct field of legislation, legal practice, and research that has increasingly come into question in recent years and for which the term “post-mortem privacy” and its protection begin to apply.

There is also another perspective that is of great importance to the study of protection of a person, their personality, and privacy in the archives. It has been almost 30 years since a prominent Canadian author in the field of archival science, Heather MacNeil, published an excellent book with a fitting title, “Without Consent”.Footnote 1 The title is better than good. It aptly concentrates some of the essential features of the situation of virtually all public archives (but in certain situations also other public institutions as administrators of public information): The mission of archives is not just to collect and store materials and information. Their purpose is also to make them accessible. Archives are one of the most important places where society’s right of access to information is exercised. It is impossible to imagine a functioning democracy without this right. However, it is also true that in the vast majority of cases, archives make information available when they do not have the consent of the persons whose data, privacy, and personality are concerned. This is a given that archives cannot change in real practice. In the vast majority of cases, it is not possible or realistic to identify the specific person concerned in the archives without a complex investigation (the name alone is not sufficient for identification). In other situations, while it is possible to identify the particular person, it is impossible to contact them, either because their address is unknown, because the archive does not have access to public administration records, in which they would trace the address, or because it is not within the archive’s capacity to address the vast number of people who appear in the archives and so on. Ultimately, the reason consent cannot be obtained in by far the greatest number of cases, is the simple fact that the person concerned is deceased. Which thus opens a specific area of the so-called post-mortem protection of personality and privacy, which has only recently become a more debated topic in both legal and archival science.

Archives are therefore put in a position in which they represent one of the key places of public interest in access to information, that is, they are supposed to strive for maximum openness, and at the same time they are forced to face the need to make available material concerning persons who in most cases cannot be given the opportunity to comment on such disclosure. This represents a fundamental difference from the initial situation where the data administrator has the possibility to obtain consent from the persons concerned without major difficulty, which is most often the case when the data subject voluntarily provides their data usually to private entities and they also give explicit consent to the disclosure of such data. However, in the vast majority of cases, public archives do not have such consents.

The absence of consent, however, comes second to the actual acquisition of personal data: A citizen does not usually consent to the collection and processing of their personal data when the data are collected and processed by government authorities, public administration, and public authorities within their legal authority. The citizen must, of course, tolerate such processing to the extent necessary. The problem, however, is that, as Heather MacNeil also pointed out,Footnote 2 by providing their data to a certain public authority, the citizen has not automatically consented to their use in absolute terms and in other contexts. And this is particularly true to the use of personal data maintained in archives for various research purposes. It is obvious that if the person concerned knew that their personal data would be further processed and disclosed to third parties in different contexts, they would very likely not have given their general consent to such use.

Thus formed specific need to open access and, at the same time, the not initially granted explicit consent to the collection of personal data and their use for other purposes (usually by researchers in the archives), together with the very frequent impossibility of obtaining and granting additional consent of the persons concerned to the disclosure of their personal data open an allegorical gateway to the wide field in which the whole multi-layered process of personality and privacy protection in the archives takes place.

2.1 European Court of Human Rights: Archives, Privacy, and the Right to Be Forgotten

The European Court of Human Rights (ECHR), as the European court responsible for interpreting the European Convention on Human Rights and examining violations thereof, is of particular relevance to the subject of this book especially with regard to Article 8, “Right to respect for private and family life”, and Article 10, “Freedom of expression”. In this respect, the ECHR plays an important role in interpreting the relationship between archives and data protection, including the protection of personal data of living persons, the right to be forgotten, and with it the freedom of expression and the right of access to information.Footnote 3 In its judgements in recent years and quite recently, the Court has emphasised that data administrators in particular must carefully implement a multi-faceted balancing of the right to be forgotten against the right to freedom of expression. Let us take a brief look at some of the cases the ECHR has dealt with in this area.

To begin with, it should be noted that already in 2009, the ECHR expressed its support for wide and unrestricted access to information, and freedom of expression in the sense of the European Convention on Human Rights.Footnote 4 When it comes to archiving, the ECHR comments greatly on cases regarding internet archives, especially media archives, and to a lesser extent on traditional, printed, and analogue materials. This fact is not surprising and the reason is distinctly provided in the ECHR case law: “Internet sites are an information and communication tool particularly distinct from the printed media, especially as regards the capacity to store and transmit information, and that the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by printed publication”.Footnote 5

On the issue of online storage of personal data for journalistic purposes, the ECHR has in several cases stressed the “substantial contribution made by Internet archives to preserving and making available news and information. Such archives constitute an important source for education and historical research, particularly as they are readily accessible to the public and are generally free.”Footnote 6 In one such case two people convicted of murder on their release after 14 years in prison unsuccessfully asked newspaper web archives to remove all their information, including the photographs and their identification. They invoked the right to start a new life in the public space. The Court mentioned in particular the right to erasure (“right to be forgotten”). In the cited judgement M.L. and W.W. v. Germany (2018), in the context of media web archives the court did admit that the data subject may claim the right to erasure, at the same time it stressed that this right is not absolute and that “it must be balanced against the general public’s right to be informed of past events and about contemporary history, particularly by means of press digital archives”.Footnote 7 The judgement is particularly linked to the press and its role in preserving archival materials of a journalistic nature, especially in the online space. On the one hand, the ECHR refers in principle to the public right to information, on the other hand, it underlines the need of a balancing act. In this context, the court mentioned that it is really necessary to distinguish whether the call for data erasure “concerned the original publisher of the information, whose activity was generally at the heart of what freedom of expression was intended to protect, or a search engine whose main interest was not in publishing the initial information about the person concerned, but in particular in facilitating identification of any available information on that person and establishing a profile of him or her”.Footnote 8

The ECHR has also granted citizens the right to be forgotten in other contexts, including in relation to the preservation of data in archives. One of these cases was the case of Segerstedt-Wiberg and Others v. Sweden in 2006. In this case, the issue was whether the state authorities were entitled to keep data on an individual’s participation in a political rally, including sensitive personal data such as membership in a particular political party, for a long period of time, or to permanently archive it. In its judgement, the ECHR pointed out that the reasons that led to the initial collection and retention of data on the individual in this case by the security forces do not automatically justify permanent retention or archiving of such data. The original reasons for protecting national security that justified the original acquisition and retention of the personal data may or may not have the same relevance 30 years later. The Court acknowledged that a continued storage of the information in relation to certain persons “entailed a disproportionate interference with their right to respect for private life”.Footnote 9

In other judgements, the ECHR has, in different contexts, established the right of citizens to know what personal data are collected about them by different authorities. Specifically in relation to archiving, the ECHR ruled that citizens have the right to know what information about them was collected by the former security forces and secret services during the period of totalitarian regimes and what information is stored in state archives.Footnote 10 In other cases, the ECHR has recognised this right of citizens in relation to health information in order to understand their childhood and early development or, for example, to research their origin, in particular the identity of their parents.Footnote 11

A very important ECHR judgement was delivered in Axel Springer AG v. Germany (2012). In this case, the ECHR outlined and summarised six criteria to be considered when conducting a balancing exercise between the right to freedom of expression and the right to respect for private life.Footnote 12 They are the following: contribution to a debate of general interest; how well known is the person concerned and what is the subject of the report; prior conduct of the person concerned; method of obtaining the information and its veracity; content, form, and consequences of the publication; severity of the sanction imposed.

The ECHR referred to this set of criteria and the cited judgement in its very recent judgement in the case of Hurbain v. Belgium (2021). Belgian courts have ordered the Belgian daily newspaper Le Soir to anonymise the name of the driver who caused an accident resulting in the death of two people. The person responsible for the accident invoked the right to be forgotten, his efforts to re-enter society and civic life after the sentence, and the damage to his medical practice by allowing his patients to look up his name in connection with the accident. Le Soir, on the other hand, argued for the right to freedom of expression. The ECHR conducted a balancing exercise which resulted in the confirmation of the verdict of the Belgian courts. At the same time, however, the ECHR stressed that this verdict does not mean that media should systematically and constantly search their archives and carry out balancing exercises. “Without prejudice to their duty to respect private life at the time of the initial publication of an article, when it comes to archiving the article they are required to carry out a check, and thus weigh the rights at stake, only if they receive an express request to that effect.”Footnote 13

This ECHR verdict has raised serious concern among a number of human rights organisations, journalists, media outlets, universities, and other entities. Some of them, in a summary response to the cited judgement, point out that in situations when it is necessary to balance between the right to freedom of expression and the right to protection of private life “the permanent removal of information from the media archive in the digital form is not a proportionate restriction on freedom of expression and will have a deleterious impact on the integrity of that archive. … The weight of the right to freedom of expression under Article 10 is not diminished by the passing of time.”Footnote 14

The cited ECHR case law, however, is for the most part primarily related to persons who are still alive. However, the absolute majority of the material preserved in the archives relates to people already deceased. For this reason we must pay special attention to post-mortem protection of personality and privacy. In recent years, the first research and studies on post-mortem protection of personality and privacy have begun to emerge, but their scope is limited to the perspective of the common law, or law in the field of general protection of personality, privacy, and other personality rights, and does not include the specific level of archival legislation and practice of processing and protection of personal data maintained in archives. This handicap has implications in some cases on the not entirely correct interpretation of the overall setup of post-mortem protection of personal data, personality, and privacy in individual legal systems. Indeed, in many cases, it is archival legislation that implements post-mortem protection where the legislation regulating the protection of personal data explicitly limits its reach solely to living persons. In this respect, the aim of this text is to show, based on several illustrative examples from some countries, how archival legislation can complement the scope of law regulating the field of post-mortem protection.

2.2 Post-mortem Personality Protection from a Common Law Perspective and in International Comparison

László Majtényi, former Hungarian ombudsman and unsuccessful opposition candidate for president in Hungary in the 2017 presidential elections, introduced the following metaphorFootnote 15: The essence of human existence does not cease with the biological end of man. We can imagine man as a comet in space. The solid core of the comet is the human essence of a living being, while the tail of the comet represents the personality that a man leaves behind even after their death. As time passes, the remnants of the personality become less and less attached to the human being of the deceased, just as the tail of the comet disappears into the darkness of the universe. “Individual uniqueness, or if you prefer, unique personality, does not disappear with death”, writes Székely.

Post-mortem rights, and in particular post-mortem privacy and personality protection (not only) in relation to materials maintained in archives, represent a relatively young area of rights that is undergoing continuous development and transformation in a number of countries and is gaining increasing research interest. For archives, this is a level of rights that affects them deeply. The reason is obvious: The vast majority of records in the archives contain data—including very sensitive data—relating to deceased persons. In addition, the percentage of materials related to deceased persons in relation to records containing data on living people will gradually increase proportionally to the ever-increasing archival acquisitions and “ageing” of records, including those concerned in them. This trend would only change if archives resorted to massive reductions of once archived records. This is not yet on the horizon in developed democracies. One of the pillars of archival thinking and archiving has long been based on the assumption that records maintained in the archives are kept permanently and “for good”. And usually archival legislation does not provide for that either. Although it is not inconceivable that one day this too will be placed on the scales in the context of thinking about the indefinite, permanent preservation of archival wealth.

A definition of post-mortem privacy was given, for example, by Lilian Edwards together with Edina Harbinja, a researcher working extensively in the field of post-mortem privacy protection, especially with regard to the digital world: “the right of a person to preserve and control what becomes of his or her reputation, dignity, integrity, secrets or memory after death”.Footnote 16 Asta Tūbaitė-Stalauskienė, a lawyer and linguist at the Court of Justice of the European Union, also relies on this definition. Another possible definition was provided by Antoon de Baets, a prominent Belgian historian specialising in the ethics of historical research, censorship, and access to records and historical sources, in his “Declaration of the Responsibilities of Present Generations towards Past Generations”: “Given that the dead are former human beings, posthumous dignity is not the same as the human dignity of the living, but it is still closely related. Human dignity is an appeal to respect the actual humanity of the living and the very foundation of their human rights; posthumous dignity is an appeal to respect the past humanity of the dead and the very foundation for the responsibilities of the living.”Footnote 17

Of course the rights of the living and the deceased in common or continental law are not equal. The essential question is what rights are transferable and enforceable even after the death of the person concerned. Usually, in legal systems, the distinction between two categories of rights plays a fundamental role in the exercise of the rights of the deceased: (1) economic rights and property rights; (2) personality rights, including the set of rights related to personality (dignity, good name, reputation, informational self-determination, etc.). While the transferability of economic rights of the deceased is generally accepted, as manifested in particular in the law of succession and freedom of testation, copyright, and so on, there are considerable differences in personality rights.

As Edwards and Harbinja accurately summarise, the system of common law follows the basic principle of actio personalis moritur cum persona, that is, that personal claims die with the person.Footnote 18 To date, the prevailing notion in the common law is that, unlike economic claims passed on to the descendants of the deceased, the damaged dignity and reputation are of no significance for the deceased. The very concept of “personality rights”, as the authors summarise, is not recognised as a terminus technicus in common law. Rather, the common law includes certain acts and offences protecting certain aspects of personality, such as misappropriation of a name, breach of confidentiality and the like, which will be addressed in more detail later in Chap. 3. Overall, however—Edwards and Harbinja conclude—there is little support for post-mortem privacy, either in the United Kingdom, in the USA, or in other countries observing the common law.Footnote 19 In a nutshell: protect the property, not the privacy of the deceased.

In the USA, privacy protection today only applies to living persons. FOIA exemptions,Footnote 20 in the form of unwarranted invasion of personal privacy (exemptions 6 and 7) apply to living persons.Footnote 21 When it comes to privacy and sensitive personal data of deceased persons, they are only taken into account in principle if their violation would unduly infringe the privacy of the surviving family, that is, living persons. The term “survivor privacy” is sometimes used in the USA.

A prime example was the case of the New York Times Co. v. NASA and the court’s decision to refuse to release a recording of the last words of the Challenger astronauts just before their deaths caused by the 1986 space shuttle explosion on the grounds that releasing their last words would cause pain to the surviving family.Footnote 22 Another analogous case, already involving the National Archives and Records Administration (NARA), concerned a request for disclosure of photographs of the dead body of Vincent Foster Jr., Deputy White House Counsel in the Bill Clinton administration.Footnote 23 The US Supreme Court refused to disclose the photographs to attorney Allan Favish, stating that “FOIA recognizes surviving family members’ rights to personal privacy with respect to their close relative’s death-scene images”.

At the same time, the Supreme Court emphasised that if there is a right to privacy, there must be a public interest in disclosing the data, and “the requester must establish more than a bare suspicion in order to obtain disclosure. Rather, the requester must produce evidence that would warrant a belief by a reasonable person in the alleged Government impropriety.” The Supreme Court also commented on the term “unwarranted invasion of personal privacy” as it is used in FOIA. “The term ‘unwarranted’ requires us to balance the family’s privacy interest against the public interest in disclosure.” We are thus faced with an approach very similar to British law at the level of the public interest test, which will receive detailed attention in Chap. 3.

Directly in relation to the deceased, personality is protected only in the case of appropriation of a name or likeness.Footnote 24 In Nelson v. Times (1977),Footnote 25 the Court summarised the essential reasoning for this approach, which, in principle, with certain exceptions discussed above, does not accept post-mortem protection of the personality rights of the deceased: First, allowing relatives to sue in cases of invasion of privacy of the deceased open room for unfounded actions or actions based on a purely emotional basis. Second, “if actions for violating the right of privacy were allowed by other than the person directly involved, fixing their boundaries and parameters would become an almost impossible task”.

The situation is different in, at least some, countries observing continental law. As of 2014, Damien McCallig counted a total of 12 EU countries where some independent rights are granted to the deceased, namely Bulgaria, Czech Republic, Denmark, Estonia, France, Italy, Latvia, Lithuania, Portugal, Slovakia, Slovenia, and Spain, of which ten countries (Czech Republic, Denmark, France, Italy, Latvia, Lithuania, Portugal, Slovakia, Slovenia, Spain) required that there be a link to the living person when exercising the rights of the deceased. Estonia imposed a period of 30 years.Footnote 26 McCallig’s calculations, however, are inaccurate; for example, he forgot to mention Germany as one of the countries where the protection of the personality of the deceased is applied and plays a very important role compared to other countries as will be shown below in the analysis of several specific cases of post-mortal protection of personality rights in relation to archival records and the processing of personal data in the German archival system.

However, at the level of the European Union as such, post-mortem personality protection is not well developed. The European General Data Protection Regulation (GDPR) explicitly declares that its scope does not extend to the personal data of deceased persons.Footnote 27 Also, the case law of the European Court of Human Rights relating to violations of the European Convention on Human Rights apart from some very limited exemptions, does not accept post-mortem protection of personality rights and the transferability of personality rights of the deceased. An illustrative example can be seen in the recent dismissal of a complaint filed by Stalin’s grandson, Yevgeny Yakovlevich Dzhugashvili, against the article “Beria found guilty”, published in the opposition newspaper Novaya Gazeta, in which Stalin and Beria are held responsible for, among other things, the Katyn massacre. The alleged defamation of his grandfather was rejected by the court on the grounds that Article 8 of the European Convention on Human Rights, the right to respect for family and private life, is not transferable.Footnote 28 The court also declares the applicability of this right to living persons in its official methodology interpreting Article 8, although to a certain and very limited extent it considers the applicability of this right to deceased persons, namely, for example, expressing respect for a deceased relative at their grave or the right to attend a funeral.Footnote 29 Thus, although interpretations pointing out that the European Convention on Human Rights cannot be limited to living persons, as, for example, J. C. Buitelaar does,Footnote 30 are not incorrect, it should be borne in mind that the European Convention on Human Rights provides only the very scope of recognition of personality rights of deceased persons and their transferability.

Likewise, another international convention important for Europe, drawn up by the Council of Europe in 1981, gradually signed and ratified by all member states of the Council of Europe and currently amended, the Convention on the Protection of Individuals with regard to the Automatic Processing of Personal Data, in its amended form, the so-called Convention 108+, limits its scope to living persons, as explicitly stated in its explanatory memorandum.Footnote 31 Buitelaar,Footnote 32 with reference to McCallig, therefore wrongly evokes the impression that the Convention may also apply to deceased persons.

If we look at international conventions with a global reach, the Universal Declaration of Human Rights (1948) prohibits arbitrary interference with one’s private life, family, home or correspondence, and attacks upon their honour and reputation.Footnote 33 None of its provisions mention the right of post-mortem protection or the rights of deceased persons. The original intention to aim the Declaration towards living persons is clear from the entire text. The same provisions and orientation towards living persons apply to the International Covenant on Civil and Political Rights (1966).Footnote 34

The question is what the future development of post-mortem personality protection will look like in countries applying both continental and Anglo-American law. Edina Harbinja made an interesting observation. In recent developments in European legislation, particularly with regard to some features of the European GDPR, she observes a significant change in the understanding of data protection, which is no longer just a rights-based term, but personal data are understood much more as property with economic significance. She is undeniably right, as evidenced by the growing number of cases of misuse of personal data for economic as well as political purposes, the most prominent example in recent years being the Cambridge Analytica and Facebook case, which ended with the then maximum possible fine of £500,000 imposed on Facebook by the UK Information Commissioner’s Office (ICO) in 2018 and the highest ever fine of $5 billion for misuse of personal data imposed on Facebook by the Federal Trade Commission in the USA in 2019. Harbinja sees this trend to view personal data increasingly as a commercial commodity and economically exploitable material rather than as part of a personality and protected human rights as the main reason that personality rights of the deceased will be marginalised in the future.Footnote 35

There are also some other clear signals that seem to suggest that personality rights in continental law in European countries will not spread further towards the deceased. The explanatory memorandum to the amended text of Convention 108+ explicitly states that it applies only to living persons. Similarly, the 2016 GDPR clearly limits its reach solely to living persons and, finally, the European Court of Human Rights has interpreted the European Convention on Human Rights to concern only living persons, with some qualified exemptions, and very significantly limits the transferability of personality rights of the deceased.

However, if we remain in Europe, the scope for the application of the protection of the personality and privacy of the deceased still remains with the individual national legislations of the Member States of the European Union. Germany is one of the countries that respects such protection in some form, but the conclusions on the strength and scope of German personality protection made by Edwards and Harbinja (2013), which are taken over by Székely (2017) and Tūbaitė-Stalauskienė (2018), are not accurate. To illustrate, let us use the following section to take a closer look at the situation in Germany and at some cases of what post-mortem and pre-mortem personality protection may look like in relation to data and materials maintained in archives.

2.3 Germany and Protection of “Legitimate Interests of Data Subjects” (“Schutzwürdige Belange”)

At a general level, the protection of personality is addressed by the German constitution, which explicitly mentions certain general personality rights. These include, for example, the right to preserve one’s dignity and honour, but also, for example, the free development of personality.Footnote 36 In fact, the German Federal Constitutional Court (Bundesverfassungsgericht), in its 1983 judgement known as the “Census Act Judgement” (“Volkszählungsurteil”), derived the newly formulated fundamental right to the so-called information self-determination from the right to free development of personality.Footnote 37 Although this right applies only to living persons, the Federal Constitutional Court had already in the early 1970s derived the existence of post-mortem personality protection from the same constitutionally guaranteed right to free development of personality, together with inviolability of human dignity.Footnote 38 The German Federal Court of Justice (Bundesgerichtshof) presupposes it in its case law as early as the late 1960s. At the same time, however, this judgement of the Federal Court of Justice had already stipulated that post-mortem personality protection is not “limitless”.Footnote 39 The Court argued that only living persons potentially affected in relation to the deceased can assert the rights of the deceased. Yet, the need to protect the rights of the deceased “disappears as the memory of the deceased fades” (“schwindet gerade in Fällen der vorliegenden Art in dem Maße, in dem die Erinnerung an den Verstorbenen verblaßt”). Already at that time, the Court mentioned preserving the dignity of the deceased and “respect in the social sphere” (“die eigene Ehre des Verstorbenen in Gestalt eines fortbestehenden Achtungsanspruchs im sozialen Raum geschützt wird”), which was also reiterated by the Federal Constitutional Court in the cited 1971 “Mephisto” case resolution. In a similar vein, the Federal Constitutional Court also upheld post-mortem protection in its 2006 resolution (known as “Der blaue Engel”), in which, although it did not grant the deceased the same personality rights as living persons, it did grant them protection of memory of the dead, their dignity, and reiterated the right to respect in social space.Footnote 40 As regards the protection of the personality rights of the survivors, the case law of the Federal Constitutional Court emphasises that the interests of the survivors must be separately and individually harmed.Footnote 41

In German law in general, in the field of personality protection, a model of personality spheres has crystallised over time based on the German Federal Court of Justice case law.Footnote 42 In principle, it is possible to distinguish two or three such spheres—social, private, and intimate. The data in the social sphere of a person include their public life and as such are generally accessible. The private sphere, which is sometimes distinguished from the intimate sphere, can be briefly summarised as the circle of family, close friends, or private life in one’s own home.Footnote 43 It is possible to enter the private sphere in certain circumstances, but the principle of balance between the rights concerned must be respected. In addition to the private sphere, it is also possible to define an intimate sphere. This sphere is in essence inviolable and the principle of balance does not apply to it. Although this sphere has not yet been precisely defined by the German Federal Constitutional Court, it has recognised the existence of “an ultimate inviolable sphere of private life, which is absolutely separate from public power. Even serious interests of the general public cannot justify interventions in this sphere.”Footnote 44 Referring to the German Constitution, the Federal Court found it crucial that “the core of personality is protected by the inviolable dignity of the human being”.Footnote 45

However, this text is primarily concerned with the application of personality rights, especially in the field of archiving and with the processing of data maintained in archives. The following text shall therefore detail several cases that have significantly affected the protection of personality rights in the German archival sector, both pre-mortem and post-mortem. I will illustrate the practice of personality protection in German archiving, controversial issues, and solutions that were eventually found. I will briefly introduce the so-called closure periods that serve as one of the instruments used to protect personality primarily in the field of archiving. The common denominator of all the analysed German cases is the specific category of the so-called legitimate interests of data subjects (“schutzwürdige Belange, schutzwürdige Interessen”) concerned in the records and archives. Although the term is considerably vaguely defined, it plays an important role in German (not only archival) law and is decisive not only for pre-mortem but also for post-mortem personality protection.

2.3.1 Klaus Kinski’s Psychiatric History and Closure Periods for Access to Post-mortem Data

In 2008, the Landesarchiv Berlin (Berlin State Archive) released Klaus Kinski’s medical records from 1950, when the actor was hospitalised for three days at the Karl-Bonhoeffer-Nervenklinik in Berlin.Footnote 46 The case soon became an infamous precedent throughout the entire German archival sector demonstrating how poor management of personal data in archives can look, and showing violation of basic principles of personality protection by archives as custodians of vast amounts of personal, including extremely sensitive, data of their citizens. What was this case about?

The Klaus Kinsky file was part of a larger set of medical records from the Karl-Bonhoeffer-Nervenklinik from the second half of the nineteenth century, Nazi Germany and the post-war period, which was transferred to the Landesarchiv in Berlin for archiving in 2008. The Landesarchiv Berlin, under the direction of Uwe Schaper, decided to disclose the file relying on the consent of the then Berlin Commissioner for Data Security and Freedom of Information, Alexander Dix. The argument was that patient files can be accessed 10 years after the death of the person concerned, which was fulfilled in this case (Klaus Kinski died in 1991). In German law, this period is based on general personality protection, in this case at the level of the general closure periods. Both the Federal Archives Act and the Berlin Archives Act (including the previous Berlin Archives Act in force at the time, and similarly in the federal acts of other German statesFootnote 47) stipulate that archives containing personal data are to be disclosed to third parties—unless the person whose personal data are to be disclosed (or his or her next of kin) has consented to disclosure—at the earliest 10 years after their death. If the date of death cannot be established, both acts determine a period of 100 years after the birth of the persons concerned, and if this date cannot be established either, the Federal Archives Act stipulates a period of 60 years after the creation of the particular document, while the Berlin Archives Act determines an even longer period of 70 years after the creation of the document.Footnote 48 The length of closure periods, including the post-mortem ones, varies slightly in the individual German states, and special periods may apply to specific records, such as the archives of the former East German State Security Service, in which case the period applied to data on persons or third parties affected by the totalitarian regime of that time is 30 years after death, as will be shown below.

However, Klaus Kinski’s widow and his son Nikolai filed a lawsuit due to the disclosure of Kinski’s medical history on the grounds that private information had been violated under the German penal code.Footnote 49 The prosecutor’s office then initiated proceedings against Uwe Schaper, but dropped them saying that although disclosure of the file had been unlawful, Schaper had not acted intentionally but out of ignorance of the law, relying on the opinion of the Commissioner for Data Security and Freedom of Information. However, the file was closed pending a further decision on the matter by the court. Legal proceedings initiated before the Berlin Administrative Court concluded in a conciliation agreement between Kinski’s son Nikolai and the Landesarchiv Berlin. It reads that the Archive shall grant access to Kinski’s file only when Nikolai Kinsky gives consent. Should the Archive want to disclose the material despite Kinsky’s protest, the decision on the matter shall lie with the court (using the diction of the German Stasi Records ActFootnote 50).

Of course, the archive should not have disclosed the (psychiatric) medical history of patients, whether it was Klaus Kinski or anyone else. This is primarily commanded by general tact, a sense of discretion, confidentiality, and the protection of the personality of those concerned in the archives. Archives should naturally apply this protection in a comprehensive assessment of whether or not to grant access to the requested records. The Landesarchiv Berlin had clearly not only violated this tact and discretion by disclosing Klaus Kinski’s file, it had also violated the law. German legislation—federal as well as individual state archives acts and other related legislation—establishes a specific institute of the so-called legitimate interests of data subjects (“schutzwürdige Belange”) whose personal data appear in records and archives. This institute obliges not only the Berlin Archive, but also other German archives together with the institutions that transfer their records to the archives, to respect and ensure the protection and care of the “legitimate interests” of the persons concerned in the—not only archival—records. These were already referred to in the previous Berlin Archives Act and are taken up in the current Act. While the Berlin Archives Act, as well as the Federal Archives Act, do indicate the above-mentioned general periods for the disclosure of archival records containing personal data (10 years after the death of the person concerned, etc.), they almost identically add further protective restrictions, especially in situations when “there is reason to believe that disclosure is contrary to the legitimate interests of data subjects”.Footnote 51

Unlike closure periods, the duration of protection using the institute of “legitimate interests of data subjects” spans indefinitely after the death of the person concerned, as the law does not stipulate any specific time limits. That is the theory. In practice, however, the case law of the German courts, as we have seen above, has since the 1960s continuously referred to the factor of the “fading memory of the deceased” and, in view of this, it assumes the time-limited nature of post-mortem personality protection. However, no precise time limits are given, so it remains the responsibility of data controllers, including archives, to assess the sensitivity of the data and determine whether disclosure would harm the “legitimate interests” of individuals to such an extent that the data should remain withheld.

2.3.2 Victims of Nazi “Euthanasia” in Germany

Let the names of all the victims of the Nazi “euthanasia” programme be published on the web—to use a contemporary euphemism for the mass murder of people with physical or mental disabilities! This was one of the appeals made (most recently to archivists in Suhl in 2019) by Götz Aly, a well-known German historian, political scientist, and journalist.Footnote 52 The issue of access to archives, or rather the personal data of persons who were murdered by Nazi Germany in the “euthanasia” programme, is another prime example in the field of protecting the personality of those concerned in archival records. The development of this case, which has a long genealogy in Germany, is also remarkable. Let us now take a closer look at it.

A society-wide debate on the disclosure of data from the files of the Nazi “euthanasia” programme has been going on in Germany for several years. Some survivors of “euthanasia” victims, in particular, have opposed and continue to oppose this step. Archives have traditionally applied the strict practice of withholding such materials (as I can attest from my own research experience on the example of archival fonds relating to the “euthanasia” programme maintained in the Landesarchiv Berlin), as has been confirmed by several court judgements. Gradually, however, voices from the other side have been raised, criticising the fact that the names of those murdered by the German Nazi regime under the “euthanasia” programme have not yet been published. Open access to these data was even required by means of a petition submitted to the German Bundestag. At the same time, a debate erupted over the publication of the book “Gedenkbuch für die Münchner Opfer der nationalsozialistischen ‘Euthanasie’–Morde” (2018), in which the authors summarised and published the names of approximately 2000 Munich victims of Nazi “euthanasia”.Footnote 53 In justifying the publication of their names, the authors state, among other things, that “the book pays homage to the victims by giving their names and details of their lives. The memory of those murdered will become part of the collective memory of the city of Munich after a long period of silence.”Footnote 54 After all, the same publishing house, Wallstein Verlag, came up with another book on the subject, when it published a collection of stories of 23 victims of the “euthanasia” programme a decade earlier.Footnote 55 But debates also took place at the level of seminars and conferences. In 2016 a conference took place under the auspices of the Federal Government Commissioner for Culture and the Media, Monika Grütters; it was aptly titled “Giving the Victims a Name. Commemoration and data protection in connection with the public naming of Nazi victims in exhibitions, memorial books and databases.”Footnote 56

When Götz Aly listed potential arguments against publishing the names of the “euthanasia” programme victims, he mentioned to German archivists what I would call a rather marginal reason that it might be embarrassing for some survivors to learn that their ancestor had been euthanised because of syphilis and the like. On the other hand, a much more relevant argument was presented by Axel Metz, archivist and head of the Würzburg City Archive. If the names of the victims are disclosed, a problem may arise if one of the persons murdered under the “euthanasia” programme had a hereditary disease. In such cases, disclosing the information about the health of the ancestors also has implications for the survivors. These effects are not only reflected at the level of protection of personality and reputation, but also on a quite practical level. Metz very rightly pointed out the possible risk of survivors intending to take out life insurance being subject to insurance companies screening and checking the databases of “euthanasia” victims for the health status of the ancestors of their potential clients. And this is not necessarily limited only to victims of “euthanasia”. Metz reminds archives to be very careful as there might come a day when an insurance company makes a request to an archive for all the information concerning the health status of a person’s ancestors (who are deceased, and therefore not subject to the standard personal data protection as a living person is), for the same purpose of checking the health status of their potential life insurance client. The same issue, that is, the risk of medical records containing information on hereditary diseases falling into the hands of health or other insurance companies, was also raised at the congress of German archivists in Suhl by Clemens Rehm, a well-known German expert on archival law from the Stuttgart archives. And indeed, American health insurance companies, for example, implement the well-known practice of examining and scrutinising the health status of their clients as thoroughly as possible for which they do not hesitate to use what could without any exaggeration be called detective methods. The institute of legitimate interests of data subjects that are covered in archival legislation and that make it possible to extend the usual length of closure periods, thus plays a very important role in civil society at this level as well.

But let us return to the case of the disclosure of the names of “euthanasia” victims in Germany; over the years the case progressed towards at least a certain disclosure of files relating to the “euthanasia” programme. In 2014, Ehrhart Körting, a legal expert and former vice-president of the Constitutional Court of the State of Berlin, issued an expert opinion (not a court judgement) concluding that the disclosure of the names of victims of Nazi “euthanasia” programme, including their birth and death dates, did not violate the above-mentioned legitimate interests (“schutzwürdige Belange” Dritter/Betroffener) of the survivors in this case.Footnote 57 Körting’s report was subsequently invoked by the German Federal Archives when it finally disclosed the names of the victims of the Nazi “euthanasia” programme, including some other information, such as the place of birth, the institution in which the victim was placed, the date of transport, and so on.Footnote 58 Of course, the archive did not grant access to the victims’ files as such and the information they contain can only be accessed individually and is subject to many conditions.

2.3.3 Post-mortem Protection of Jewish Victims from the German Town of Minden and the Risk of Exposing Jewish Origin Under the Current Threat of Rising Anti-Semitism

Until recently, with regard to the subject of the Shoah, the names of the victims of Nazi extermination were usually revealed without further ado. Today, in the context of increasing anti-Semitic attacks across Europe, more and more questions and doubts are raised over the disclosure of personal data of Jewish victims.

In 2019, the World Jewish Congress commissioned a study and a survey on anti-Semitism in Germany. According to the conclusions of this study, as of 2019, 27% of the population in Germany is anti-Semitic, and as for the German elite (the study criteria included a university degree and an annual income above EUR 100,000), 18% are anti-Semitic.Footnote 59 At the same time, anti-Semitic violent attacks have been on the increase in Germany in recent years,Footnote 60 however, a similar development is also evident in other European countries. According to a survey conducted by the EU Agency for Fundamental Rights in 2018, a total of 39% of respondents said that they had experienced some form of anti-Semitic harassment in the last five years.Footnote 61

In the context of the recent rise in anti-Semitism, the explosive nature of the question of whether to reveal the identities of citizens of Jewish origin, including those who have long since passed away, most often Jews murdered during WW2, is a growing concern. A prime example is the case of the disclosure of the personal data of people of Jewish origin from the German town of Minden and its vicinity in North Rhine-Westphalia. In 2013, the Minden municipal archives published a database containing personal data of citizens of Jewish origin, most of whom were murdered by Nazi Germany between 1939 and 1945; however, the database also included those not affected by the Holocaust.Footnote 62 The database can be used to trace—in some cases in detail—the dates and places of birth and death, home addresses, and movement of persons during their lifetime, place of emigration, if applicable and known, as well as other data.

Some of the survivors then contacted the Landesbeauftragte für den Datenschutz und die Informationsfreiheit Nordrhein-Westfalen (the State Commissioner for Data Protection and Freedom of Information of North Rhine-Westphalia) and opposed the publication of the database.Footnote 63 In 2015, the database was temporarily withdrawn pending clarification. In his opinion and without explicitly naming the Minden Municipal Archive, the Commissioner highlighted several problematic points or violations of the law.Footnote 64 He mentioned, inter alia, the lack of a legal basis for such disclosure, the lack of any restrictions limiting the use of the database to scientific purposes, the failure to take into account the “legitimate interests of data subjects”, and violation of the right of the persons concerned to informational self-determination by failing to provide their consent to the disclosure of the data. He also brought up the possibility of using the context of the database to deduce data on living persons.

However, the case of the Minden database of the Jewish population was not over. In October 2015, representatives of several parties concerned, including the Jewish community, met with the mayor of Minden.Footnote 65 The conclusion of the meeting was clear: Work on the database should continue, including the publication of at least some of the data collected. The City of Minden approached the Commissioner for Data Security and Freedom of Information with a different position on the database. Eventually, in November 2016, a joint meeting was held and an agreement containing several points was reached. First, the database was renamed and instead of the potentially discriminatory “Mindener Juden” it now bears the name “Jüdisches Leben in Minden und Umgebung”. Part of the collected data is presented publicly and the rest is used only for internal archival purposes. The database does not contain any data on living persons or data that might lead to such persons; this claim, however, is in my opinion not entirely substantiated. At the request of the next of kin of the persons concerned, data on their relatives shall be removed.

As demonstrated above with the examples of the archival records of the “euthanasia” programme in Nazi Germany or the regime’s Jewish victims, even the period of 80 years after the creation of the records together with the death of the persons concerned are insufficient and may not be enough to prevent legitimate concerns about the potential harm to personality rights by disclosing and publishing some of their data. Although German archival legislation currently explicitly allows for the disclosure of archival material and search tools, including digitisation instruments, archives must still respect the aforementioned principle of preserving the legitimate interests of individuals.Footnote 66

There is no simple answer to the question of whether, in order to protect personality rights, including those of the deceased, some files should remain permanently closed, or whether they should be destroyed as the most reliable form of data protection. For example, the case law of the German Federal Court of Justice and the Federal Constitutional Court does not take this into account and the courts base their decisions on the principle of the data “disappearing sensitivity”, which also manifests on the level of the “fading memory” of the deceased by their survivors, as we have seen above. Other legislations use this principle in a similar manner. For example, in the USA, the law gives the Archivist of the United States, that is, the head of NARA, the right to assess the sensitivity of data contained in federal-level archives that might potentially violate the privacy of living individuals and to disclose such data in case they decide that “enough time has passed that the privacy of living individuals is no longer compromised”.Footnote 67

Yet, there are national legislations that assume a certain form of permanent post-mortem personality protection; Australia can be used as such an example. The Australian Family Law Act prohibits the disclosure of information on identifiable persons from records used in family law proceedings.Footnote 68 Moreover, the Australia-wide general legislation regulating privacy and personal data protection in the country, unlike, for example, the European Union, does not explicitly limit its reach to living persons and does not stipulate a clear period after which privacy protection ceases to apply.Footnote 69 Yet, it should be added that some Australian states do in fact provide post-mortem protection milestones. For example, the definition of personal information in New South Wales does not include persons deceased for more than 30 years.Footnote 70 Any data about persons who died more than 30 years ago are no longer considered personal data. Tasmania limits the reach of personal data, and therefore their protection, to a slightly lesser extent, in this case to 25 years after a person’s death.Footnote 71 The Northern Territory provides post-mortem protection of only five years, again by limiting the reach of the concept of personal data by defining the term “person” to five years after their death.Footnote 72

However, the real question is, whether in some cases certain categories of records and information should remain withheld permanently. One example that can be mentioned are records of divorce court proceedings (which, incidentally, also fall within the Australian Family Law Act). They often contain very sensitive information that should without much doubt remain closed to the public eye. In the USA, access to information belonging to the category of divorce records has been addressed by Laura W. Morgan, who argued against the general accessibility of these files.Footnote 73 Another example, albeit more controversial and now increasingly criticised, is the practice in some countries of sealing closed adoption records so that the link between the biological parents and their offspring cannot be traced.

Some archival legislative systems set infinite closure periods, or explicitly declare certain types of records as inaccessible and permanently withheld. However, such indefinite periods are imposed for categories of records concerning the production and use of nuclear, biological, or chemical weapons and other weapons of mass destruction, as is the case, for example, in the French archival system.Footnote 74 Germany also allows for archives to be permanently withheld. However, the justification uses a more general wording: At federal level, the Archives Act stipulates that access to archival records is denied (at any time, i.e., indefinitely) if “there is reason to believe that using these records would harm the well-being of the Federal Republic of Germany or one of its states”.Footnote 75 Harm to the “well-being” of the state then includes such matters as internal and external security, relations with other states and international organisations, defence, civil protection, protection of the constitution, and so on. As the primary concern in these and similar cases is not the protection of personal data, personality, and privacy, I will not elaborate these reasons for permanently withholding records in any more detail. This issue, that is, in what respect should some archival records remain permanently inaccessible, whether archives should begin to include the data minimisation perspective in the specific process of archival appraisal, and whether they shall consider intentional and legal destruction of personal data before their transfer to the archives, will be covered in Chap. 8.

Let us conclude the summary of the situation concerning personality protection and disclosure of personal data in the German archival system by looking at specific material of the former East German State Security Service (Stasi), for which an independent archive had been established by law. The material in question contains extremely sensitive personal data and records that usually never see the light of the “public” day. In many respects this material corresponds to that still created today by intelligence services around the world, whose archives, with hardly any exception, remain completely and permanently closed to the public.

2.4 Archives of the Former East German State Security Service (Stasi): A Model for Applying the Concept of “Legitimate Interests” in Archival Practice—Purpose of Consultation, Interest of Science, and Privileged Access

Some of the problematic situations mentioned above, which archives face almost every day, show how difficult it is to protect those persons who have left their “imprint” in archival sources. The German or Austrian models attempt to address this issue in particular by introducing the concept of “legitimate interests” of data subjects. However, as shown above, this model can be characterised by considerable vagueness and legal uncertainty. This means that archives are left with a very wide range of options as to how to interpret the need to care for the “legitimate interests” of persons as embodied in archival sources and how to translate this need into the actual procedural settings of care for their protection.

One of the possible and at the same time very specific ways in which archives can deal with the issue of personality protection in archival records as well as the issue of vagueness of the term “legitimate interests”, is the approach taken by the German archival sector and more specifically by the Stasi Records Archive (Stasi-Unterlagen-Archiv) in the case of access to a specific group of materials, namely the records of the former East German State Security Service (the Stasi).Footnote 76

The Stasi Records Archive is now housed in one of the buildings of the giant complex of the former headquarters of the DDR Ministry for State Security (Ministerium für Staatssicherheit), the dreaded Stasi. What was originally a subtle single-structure headquarters in 1950, when the infamous ministry was established, grew into an extremely large and closed-to-the-public complex of 52 buildings that has significantly changed the character of the entire Lichtenberg district in Berlin. At its peak, it housed 7000 employees out of a total of approximately 90,000 direct Stasi employees across the DDR. However, we must not forget the huge number of so-called unofficial collaborators, in German terminology referred to as “inoffizielle Mitarbeiter”, abbreviated as “IM”, which totalled approximately 189,000 by 1989 at the time of the end of the totalitarian East German regime.Footnote 77

Note should also be made of the total number of Stasi employees at its headquarters. Among the records destroyed by the Stasi itself at the end of its existence were summary materials relating to the headquarters, including staff rosters. Estimates of the number of employees at the headquarters were thus made mainly on the basis of the number of buns baked (the Stasi headquarters had its own bakery) and consumed in a working day, taking into account the estimated average number of buns consumed by one person.

The Stasi Records Archive represents an atypical archive, especially as it manages the records of a very specific creator. It also stands out among other archives due to the extraordinary public interest in the records it maintains. Let us look at some general statistics.Footnote 78 The Stasi Records Archive, including the materials of the regional offices, keeps a total of 111 linear kilometres of archival material, of which approximately 40% is stored at the Berlin headquarters. Of the total 111 km preserved, 51 km were archived by the Stasi itself, while another 60 km were found disorganised in the offices of Stasi employees. These records were organised by the Stasi Records Archive and now about 91% of this number has been processed and made available. However, a rather special and unique part of the surviving documentation is the unprecedented number of records destroyed by the Stasi during the period of the collapsing regime, which were, however, preserved in the form of shredded fragments and which the archive has been working on restoring for a long time.

Since the beginning of the archive existence in 1990, as of 30 June 2019, a staggering 7,263,501 requests have been addressed to the archive for consultation or access to its archival records, of which 3,282,078 were made by citizens! This represents an average of over 100,000 requests from citizens per year and a total of about 240,000 requests per calendar year. The Stasi Records Archive is also able to provide data on the development of research interest. While in 2011 and 2012 there were still over 80,000 requests from citizens, in 2013–2015 the numbers were between 60,000 and 70,000 and in 2016–2018 the numbers dropped to about 45,000–49,000 requests. These astonishing figures, however, correspond with the similarly surprising total number of Stasi Records Archive employees of totalling 1440 at the headquarters and including branches (as of 1 January 2019)!

A characteristic feature of the access to Stasi archival records is the high specificity of the rules of access to archives maintained in the Stasi Records Archive as well as the complexity of the aspects taken into account when deciding on granting access to Stasi material. Although closure periods are one of the tools used in the process of opening access to Stasi records, the whole system is primarily built on the consideration of several levels. The first aspect is the person of the researcher requesting access to the archival records (= “for whom the archives are intended”). The second aspect considers the category of persons concerned in the archives, that is, whether they are victims of the regime, Stasi employees, and so on (= “who the archives concern”). Other aspects are also considered. These include in particular the purpose of consultation, that is, whether it is for personal use, research purposes, media, and so on. But the considerations also look into how the information obtained will be further used by the researcher (scholarly publication or another professional output, publication in the media, personal use only, etc.). One more very specific criterion is also taken into account, namely how the information contained in the archives was obtained.

The last aspect concerning the manner in which the information was obtained by the record creator, that is, in this case the Stasi, rarely appears in the practice of granting access to archives. This shows the specific nature of the Stasi, which served both as a secret state police and as an intelligence service with internal as well as external operations. As such, it obtained and collected data (not only) on the citizens of the former DDR, including highly sensitive data. Many of the Stasi methods violated basic human and civil rights, especially the protection of personality and privacy, whether it be wiretapping, violations of domestic freedom, secrecy of correspondence, and so on.

To this day, intelligence services, even in developed democracies, are reluctant to disclose their records and usually do not do so at all or only disclose absolute torsos of “their” material.Footnote 79 They even resist the actual transfer of records they maintain to public archives. In some cases, they even have the legal authority to do so and do so on perfectly legitimate grounds. These include, in particular, the necessary confidentiality of intelligence activities and, along with this, the protection of intelligence sources, which in some countries is one of the reasons for extending the records classification periods, if such exist. This is the case, for example, in the USA in the latest Presidential Executive Order on classified information issued by President Barack Obama.Footnote 80 The protection of intelligence sources is also one of the reasons used by the British intelligence service, MI6 (Secret Intelligence Service), to justify not disclosing any of its records without any time limit, starting in 1909, when it was set up, until present day and even into the future as MI6 does not envisage transferring any of its records to the British National Archives.Footnote 81

In this respect, the situation with the former Stasi records is quite the opposite. The protection of the identity of intelligence sources and the identity of Stasi employees is not a reason not to disclose Stasi material. The only reason is the protection of the personality rights of the persons concerned in the archival records. The strongest protection is offered to those who were affected by the regime or third parties, while Stasi employees and collaborators remain the least protected; in their case, the protection only covers their private and intimate lives.

The Stasi archives also explicitly apply post-mortem protection of personality and privacy; it does so by applying closure periods recognised for a group of persons affected by the regime or third parties, amounting to 30 years after the date of death.Footnote 82 However, for the purposes of scientific research, these periods may be reduced to 10 years after the death of the person concerned. These periods, however, do not apply to Stasi employees and collaborators, and to public figures, political office-holders, public officials, and so-called persons of contemporary history (“Personen der Zeitgeschichte”). However, in parallel to the system of closure periods, the already mentioned “legitimate interests” of the people come into play in the case of the documents of the former Stasi as well as in the case of the records of other public archives in Germany. The “legitimate interests” are not limited by any fixed period, although, based on the case law of the German Federal Supreme Court and the Constitutional Court cited above, their protection is not indefinite. Some form of protection is recognised for all categories of persons, including Stasi collaborators, “persons of contemporary history” and, of course, persons affected by the regime. Naturally, the appraisal standards are not identical. The strongest protection is indisputably applied to those affected by the regime, whereas when it comes to Stasi collaborators and employees, only their intimate lives are protected.

In conclusion, the model of personality and privacy protection in the case of the Stasi records maintained in the Stasi Records Archive is built on the principle of multi-criteria assessment of access requests. Personality protection is not provided by the simple application of certain closure periods. While these are also implemented as one of the tools, they are complemented by and combined with other criteria.

The model of access to Stasi archives is characterised by high specificity of the access rules. In principle, it is based directly at the legislative level but the possibility of such a specification of the conditions of access is facilitated by the fact that it concerns a very narrow range of archival record groups and the data contained therein. This makes it all the easier to define precise rules of access. At the same time, it is necessary to bear in mind that the records in question were created by an organisation which combined the role of the secret police and the activities of today’s intelligence services operating both internally and externally. They are therefore records which, in other circumstances, would never have been disclosed to the public. Their disclosure was driven by the change of the regime and the need of the newly formed democratic society to come to terms with its own totalitarian past.

In spite of this, the access model can in many ways be inspiring for other categories of archives. This is also true in spite of the specific place the Stasi Records Archive holds in the network of German archives; this archive and its activities, together with the law defining its work, have in some cases become a precedent for the procedures, or rather some specific controversial cases of access to archival records maintained in other German archives, as we have seen in the case of the mental health records of the German actor, Klaus Kinski.

However, the multi-criteriality of the aspects taken into account and assessed when deciding on the disclosure of archival records implemented as a tool for the protection of personality and privacy, including post-mortem protection, is appropriate and, in certain—albeit obviously differently modelled—circumstances, applicable in other countries, not only within the European Union.

In the following chapter, let us look at several different tools used by some other archival systems in Europe to protect personality rights and privacy of those concerned in archival materials. In doing so, I will focus on France and the United Kingdom, which together represent quite contradictory legal systems of common and continental law.