In the case of ML and WW v Germany ( ECHR 554) (available only French), the Fifth Section of the Court of Human Rights dismissed an Article 8 “right to be forgotten” application in respect of the historic publication by the media of information concerning a murder conviction.
The Court emphasised the protection of media archives, and public access to them, conferred by Article 10 of the Convention. However, the decision confirms the availability of an Article 8 right to be forgotten against primary publishers as well as search engines.
In May 1993 the applicants (who are half-brothers) were convicted of murdering a popular actor, Walter Sedlmayr (referred to in the judgment as “W”), in 1991 and sentenced to life imprisonment. They have always maintained their innocence. They were released on probation in August 2007 and January 2008 respectively. The convictions were not “deleted” (that is “spent”) under German law.
In 2000 the radio station Deutschlandradio ran a report on the occasion of the anniversary of the murder, which named the applicants and made reference to the fact that they had been unsuccessful in a recent application to the Constitutional Court to have their case reopened. A transcript of the report remained online in the radio station’s archive in 2007, at which point the applicants brought proceedings requesting the anonymization of the personal data in the transcript (they were not seeking to have the transcript removed entirely).
On 29 February 2008 the Hamburg Regional Court granted the applicants’ requests, placing particular weight on the fact that in 2007 (when the applicants were about to be released) their interest in no longer being confronted with their past actions having regard to their aim of reintegrating themselves into society. They were no longer obliged to accept the making available of the information given that they had been tried and sentenced for the crime, and that the public had already been sufficiently well informed about the matter. The Court of Appeal upheld those judgments.
The Federal Court of Justice [pdf] quashed the decisions, primarily on the grounds that the Court of Appeal had not taken sufficient account of the radio station’s right to freedom of expression and the public’s interest in being informed. Among the factors referred by the court were the tone of the report, the fact that it could only be found by internet users searching for information about the applicants and the public interest in being able to do research on past events. Also significant was the concern that any requirement for publishers to check regularly their archives would have a chilling effect.
The applicants brought proceedings on similar grounds against the weekly magazine Der Spiegel (concerning a collection of 5 articles – including photographs taken at the court – dating to 1991–1993 about the murder, the subsequent investigation and trial), and the daily newspaper Mannheimer Morgen (concerning an article published in 2001, the full text of which was only accessible to subscribers, referring to the fact that the applications had failed in getting the case reopened). Again, they succeeded at first instance – with an order that their names and/or photographs be removed – and on appeal. In 2010 the Federal Court of Appeal upheld appeals by Der Spiegel and Mannheimer Morgen adopting the same reasoning as applied in the Deutschlandradio case. The court emphasised that offenders do not have the benefit of right to have reports naming them deleted and, unsurprisingly, particularly not in the context of capital crimes.
With the Federal Constitutional Court having decided not to entertain constitutional appeals lodged by the applicants, in October 2010 the applicants made an application to the Court of Human Rights complaining that the decisions of the German courts had violated their Article 8 rights. The media organisations intervened as third parties.
The impugned articles appeared in search engine results but the applicants did not make applications for search engine delisting. This is unsurprising given that their legal proceedings and application to Strasbourg predated the CJEU’s decision in Google Spain in which the right to be forgotten (in respect of search engines) was given judicial recognition.
The Court noted that the applications required an examination of the fair balance that had to be struck between the applicants’ right to respect for their private life, guaranteed under Article 8 of the Convention, and the right of the radio station and the press to freedom of expression and the public’s right to be informed, guaranteed under Article 10 .
In addition to the role of the press in communicating information and ideas it has an ancillary but important function of building up archives from already-published information and it them available to the public. This creates a precious source for teaching and historical research .
The Court noted that online communications and their content are much more likely than the traditional written press to undermine the exercise and enjoyment of the right to respect for private life. Search engines play an important role in this regard . Although that it was primarily on account of search engines that the information made available by the media could be obtained easily by internet users, the interference complained of by the applicants resulted from the decision by the media organisations to publish and conserve this material on their websites; the search engines merely amplified the scope of the interference. Unlike primary publishers (whose activity is at the core of the right to freedom of expression), search engine operators’ primary interest is not in the publication of the information but in locating information about the subject of a search and building a profile on him/her. With this in mind, the Court emphasised that the balance of interests may lead to different results depending on whether an individual directs her/his request for erasure to a search engine operator or primary publisher . This case concerned only the latter.
The Court then went on to consider the balancing of Article 8 and 10 rights by reference to the well-known Axel Springer criteria:
i. Contribution to a debate of general interest
There was a considerable interest in the crime at the time and, after 2000, the applicants had sought to reopen the case. The public had an interest in being informed about criminal proceedings; however,
“after a certain period of time has elapsed and in particular when a convicted person is about to leave prison, that person has an interest in not being confronted with his [past] actions with a view to reintegrating him into society” .
The Court agreed with the German Federal Court of Justice’s conclusion that the public had an interest in being informed not only about a current event, but also in being able to conduct research into past events. One of the media’s tasks was to participate in creating democratic opinion, by making available to the public old news items that were preserved in their archives. Public access to press archives falls within the ambit of Article 10 and measures limiting such access must be justified by compelling reasons  – .
The Federal Court of Justice had referred to the risk that a decision to grant the requests to remove identifying elements from the reports could have a chilling effect on the press’s freedom of expression. The Court held that an obligation to examine right to be forgotten requests such as those of the applicants risked causing the media to omit individualised information in news reports or to stop putting their archives online altogether  – .
Noting that ML and WW were not asking for the removal of the reports in question, but only that they be anonymised, the Court observed that rendering material anonymous was a less restrictive measure in terms of press freedom than the removal of an entire article. However, the approach to covering a given subject was a matter of journalistic freedom and that Article 10 of the Convention left it to journalists to decide what details ought to be published, provided that these decisions corresponded to the profession’s ethical norms.
On the facts of these cases, the Court considered that the inclusion in news reports of individualised information (at the time of their right to be forgotten requests), contributed to a debate of general interest which had not disappeared through the passage of time .
ii. Notoriety of the person concerned and the object of the report
The applicants became well known as a result of the trial and they had regained their notoriety after attempting to get their case reopened. They were not, therefore, private persons unknown to the public at the time they made their requests (some 11 years before this judgment was handed down) .
iii. Prior conduct of the applicants in respect of the media
As to ML’s and WW’s conduct since their conviction, the Court observed that the applicants had lodged every possible judicial appeal to secure the reopening of the criminal proceedings against them. During their most recent request to reopen proceedings in 2004, ML and WW had contacted the press, transmitting a number of documents while inviting journalists to keep the public informed.
The Court noted that as a result of the applicants’ conduct vis-à-vis the press, less weight was to be attached to their interest in no longer being confronted with their convictions through the medium of archived material on the internet. Their legitimate expectation of securing the anonymization of the reports, or even a right to be forgotten online, had thus been very limited .
iv. Content, form and impact of the publication
The Court, like the Federal Court of Justice, considered that the application concerned reports which described a judicial decision in an objective manner, which were fair and accurate reports.
The dissemination of the publications was limited in scope because they were no longer made available on the news pages of the websites and they were subject to restrictions such as paid access or a subscription . Also relevant, in the Court’s assessment, was the fact that the publications would not come to the attention of internet users unless they searched for the name(s) of the applicant(s) . Significantly, the Court noted that ML and WW had provided no information about any attempts made by them to contact search-engine operators with a view to making it harder to trace information about them .
v. Circumstances of taking photos
The images (which were in no way compromising) showed the applicants as they were in 1994 which decreased the likelihood of their being recognised .
In conclusion, and given the margin of appreciation left to the national authorities when balancing competing interests, and
“the importance of keeping reports available whose lawfulness when they are published is not disputed and the applicants’ conduct vis-à-vis the press, the Court considers that there were no substantial grounds for it to substitute its view for that of the Federal Court of Justice” .
As a result, the Fifth Section unanimously found that there was no violation of Article 8.
The decision of the Court on the facts of this case is unsurprising and uncontroversial. Despite the favourable decisions at first instance, the applicants’ right to be forgotten requests faced very serious obstacles. The archived media reports concerned convictions (and ancillary matters) in a notorious murder case and the applicants had, themselves, brought the case to the attention of the media many years after their convictions. In contrast to the decision of the Belgian courts in Olivier G v Le Soir (29 April 2016, n° C.15.0052.F [pdf]) (see our post here), the conviction was not “spent” or “deleted”. In these circumstances the balance came down clearly and decisively in favour of continued publication.
This judgment provides strong support for the protection of media archives (particularly in respect of contemporaneous court reporting) under Article 10 of the Convention. It also emphasises the deference given to editorial judgment in the context of determining whether or not an article which remains online should name an individual (this may be important in the context of right to be forgotten requests). The Court expressed strong concerns about the chilling effect of right to be forgotten requests against media organisations in respect of archived articles. These concerns arise even if the right to be forgotten is considered upon request, on a case-by-case basis, and in the absence of any general obligation to monitor and delete archived publications.
In spite of the strong facts militating against anonymising the publications in the media archives, the Court nevertheless found the application to be admissible and carefully considered the “general interest” arguments in favour of continued publication. This suggests that Article 8 may encompass a right to be forgotten even in media (i.e. primary publisher) cases. In English law such a right would be exercised through the tort of misuse of private information.
The case is likely to have limited resonance for future right to be forgotten (privacy) claims against primary publishers in this jurisdiction. It concerned convictions which could never be spent under English law. The applicants had not even been granted parole at the point at which they commenced proceedings and a relatively short period of time had passed since the original publication of most of the relevant articles. The weight carried by a convicted person’s Article 8 rights would be very different in circumstances in which the conviction is spent.
Although this judgment represents a strong affirmation of the rights of primary publishers in the context of publications relating to convictions, the Court emphasised that search engine operators do not enjoy the same rights and their interests do not carry the same weight in such cases. This is consistent with the reasoning of the CJEU in Google Spain. The Court may have taken a different view if, instead of seeking anonymisation of media archives, the applicants had sought search engine “delisting”. Given the Article 10 rights play when challenging a primary publisher, a convicted person’s right to be forgotten – whether under data protection law or Article 8 – is much more powerful when against search engine operators or internet platforms.
Hugh Tomlinson QC and Aidan Wills are members of the Matrix Chambers media and information practice group.