ABSTRACT
Important parts of the reasoning of the Bundesverfassungsgericht are based on ideas from the sociological systems theory, particularly the works of the late German sociologist Niklas Luhmann. In his works on fundamental rights, Luhmann explains that such rights have the function of guarding the differentiation of society into sub-systems.6 The role of privacy, in particular, is to protect the consistency of the individuality of the individual, and consistent self-expressions rely heavily on the separation of societal sub-systems.7 Privacy and informational self-determination guard these separation lines, as they prevent sensitive information from one context (e.g. the working world, medical treatment, family life, etc.) from proliferating into other ones. The protection of personal data is essential for a free and self-determined development of the individual. At the same time, the selfdetermined development of the individual is a precondition for a free and democratic communication order.8 If citizens cannot oversee and control which or even what kind of information about them is openly accessible in their social environment, and if they cannot even appraise the knowledge of possible communication partners, they may be inhibited in making use of their freedom. If citizens are unsure whether dissenting behaviour is noticed and information is being permanently stored, used and passed on, they will try to avoid dissenting behaviour so as not to attract attention. They may
4 Bundesverfassungsgericht, decisions volume 65, p. 1 ff.
