In the case of Biancardi v. Italy ( ECHR 972) the First Section of the European Court of Human Rights held that an order finding that the editor of an online newspaper liable for failing to de-index an article concerning criminal proceedings did not breach Article 10 of the Convention.
The ECtHR held that the administrators of online newspaper archives accessible through the internet could be obliged to de-index material. The prolonged availability of a story about criminal proceedings against an individual breached his right to reputation.
The applicant was the editor of an online newspaper which, in 2008, published an article concerning a fight involving a stabbing in a restaurant which mentioned the names of those involved and the reasons for the fight. It gave details about the arrest and detention of those involved.
In September 2010 one of the participants in the fight, V.X., served notice on the applicant asking for the article to be removed from the internet. When the applicant refused proceedings were brought in the domestic courts.
In January 2013 the district court held that the easy access via the Internet to information on the criminal proceedings in the period from March 2008 to May 2011 (when it had been de-indexed) breach the claimant’s right to reputation. Compensation of €5,000 for each claimant was awarded.
This decision was upheld by the Supreme Court in June 2016. At the time of this decision the criminal proceedings against V.X. were still pending.
On 7 December 2016 the applicant lodged an application with the ECtHR alleging that his right to impart information under Article 10 had been breached. There were interventions by the “Reporters Committee for Freedom of the Press”, the “UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression and the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights”, the “Media Lawyers Association” and the “Media Legal Defence”.
The First Section noted that it was common ground that the decisions of the domestic courts had interfered with the applicant’s Article 10 rights but were “prescribed by law” and had a legitimate aim .
It was emphasised that the case involved only de-indexing, not removal of the article which had been published online .
This was a case in which the well known Axel Springer criteria for balancing Articles 8 and 10 were relevant .
There were two main features that characterised the present case
“one is the period for which the online article remained on the Internet and the impact thereof on the right of the individual in question to have his reputation respected; the second feature relates to the nature of the data subject in question – that is to say a private individual not acting within a public context as a political or public figure” .
As a result, the strict application of the Axel Springer criteria was inappropriate.
The First Section took into account a number of factors
- The information in the article had not been updated since the occurrence of the events in question ,
- The relevance of the applicant’s right to disseminate information decreased over the passage of time compared to V.X.’s right to respect for his reputation 
- The information published concerned sensitive data, it related to criminal proceedings 
In the circumstances,
“the finding by the domestic jurisdictions that the applicant had breached V.X.’s right to respect for his reputation by virtue of the continued presence on the Internet of the impugned article and by his failure to de-index it constituted a justifiable restriction of his freedom of expression” .
This is the first case in which the ECtHR has considered the question of de-indexing of online newspaper archives. The “right to reputation” of a person accused of a criminal offence outweighed the right of the newspaper to continue to make available a story about the incident which had led to the arrests and charge.
Despite the fact that the criminal charges were still pending the ECtHR accepted that the Article 8 reputational rights of the suspect took precedence over the Article 10 rights of the online publisher. An argument by the applicant publisher that the balance between the rights could be secured by publishing “supplementary information” (see ) was not accepted.
The ECtHR placed considerable weight on two factors. First, that person seeking de-indexing, V.X., was not a public figure and was not acting in a “public context”. Second, that the order was not for removal of the article, but only de-indexing.
The second point was of particular importance. The judgment does not mention the recent case of Hurbain v Belgium (see Inforrm case comment) which itself is to be reconsidered by the Grand Chamber. That case concerned the anonymisation of a media archive in a “rehabilitation of offenders” case and made clear the importance of maintaining newspaper archives. It is evident that where the less drastic remedy of “de-indexing” is at issue the Court is prepared to give much greater weight to the right to reputation.
Until now de-listing or de-indexing requests have been almost exclusively directed to search engines. This judgment makes it clear that they can also succeed against primary publishers who maintain online archives. It will be interesting to see whether this approach finds favour with the ICO and the English Courts.
Hugh Tomlinson QC is a member of the Matrix Chambers media and information practice group and editor of Inforrm.