The Court of Human Rights Remembers the Right to be Forgotten

August 24th, 2018

Everyone is weighing in on the right to be forgotten these days and now, not to miss a turn on the rights bandwagon when its Luxembourg rival has got in ahead of it, the European Court of Human Rights has had a go too in ML & WW v Germany (App. No. 60798/10 and 65599/10) (judgment of 28 June 2018).Unfortunately the judgment is only available in French at this stage, and rather than filling this blog with lengthy passages from Google Translate, we direct readers to the helpful English summary from the Court itself of the case.

It is safe to say that ML & WW were not the applicants one might have chosen to run a right to be forgotten test case under Article 8 ECHR. They had murdered a well-known actor in 1993 and been sentenced to life imprisonment, and subsequently unsuccessfully sought retrials. Despite this somewhat unpromising start, they nonetheless sought in 2007 – shortly before they were due for release – to claim that Article 8 required various media organisations to anonymise archived coverage of their case and trial which remained on the internet.

The German courts declined this invitation and the Strasbourg Court did not feel the need to disagree. It accepted that there was a prima facie interference with the positive obligation on the State under Article 8 to protect private lives, but also held that there were differences in analysis between claims against the original publishers – whose Article 10 free expression rights were squarely engaged – and search engines – which the Court did not seem to consider had the same rights.

However, the interference was accepted to be a proportionate one. The Court considered very similar factors to those set out by the Article 29 Working Party and considered by the High Court in NT1 & NT2 v Google LLC (see my inordinately lengthy post here). There was a balance to be struck between the Article 8 rights of the applicants and the Article 10 rights of the publishers, whose coverage had not been said to be unlawful, and those of the public in being informed about past events and contemporary history. It was a matter for journalists and not the courts whether individuals were identified or anonymised, and too ready an acceptance of such applications would have a chilling effect on press reporting and preserving of their reports.

The public interest was a matter which would subside with time, but in this case the applicants had remained in the public eye by challenging their convictions and waging public campaigns; they were not unknown to the public. The reports were on matters capable of contributing to debate in society. Having regard to the applicants’ own attempts to gain publicity, they could have no legitimate expectation of anonymisation online.

The Court also considered the content, form and consequences of the publication. Reports of the trial and outcome were objective and details of the applicants’ private lives were matters which arose out of the trial process. It was, in essence, responsible reporting. The only people likely to find and read the reports were those who were looking for them. Photographs used were 13 years old and were less likely to lead to identification following release. It appears from the summary that the Court was able to evade the arguments about perpetual availability online on the basis that no delisting request had been made to search engines.

The judgment is plainly right, and consistent with the general application of the Google Spain guidance. It is a welcome assurance of common sense from the European Court of Human Rights, and it will be interesting to see the extent to which the emphasised importance of balancing Article 8 and 10 rights is replicated in the forthcoming CJEU decisions, as that was (in)famously not something seriously addressed in Google Spain.

Christopher Knight

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