06 Jul Right to be forgotten and freedom of the media

In the case of M.L. and W.W. v. Germany (application no. 60798/10 and 65599/10, 28/06/2018) the European Court of Human Rights held, unanimously, that there had been no violation of Article 8 (right to respect for private life) of the European Convention on Human Rights.

The case concerned the refusal by the Federal Court of Justice to issue an injunction prohibiting three different media continuing to allow internet users access to information and names of applicants sentenced to life imprisonment for the murder of a famous actor.

The applicants complained of an infringement of their right to respect for their private life (Article 8 of the Convention) before the European Court of Human Rights.

The Court in its decision shared the findings of the German Federal Court, which had reiterated that the media had the task of participating in the creation of democratic opinion, by making available to the public old news items that had been preserved in their archives. The Court held that rights of a person who had been the subject of an internet publication had to be balanced against the public’s right to be informed about past events, particularly using digital press archives. As to how well known the applicants were, the Court also observed that applicants were not simply private individuals who were unknown to the public.

The Court reiterated that 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.

The Court stated that the inclusion in a report of individualised information, such as the full name of the person in question, was an important aspect of the press’s work, especially when reporting on criminal proceedings which had attracted considerable attention that remained undiminished with the passage of time. The Court noted that during their most recent request to reopen proceedings in 2004, applicants had themselves contacted the press, transmitting a number of documents while inviting journalists to keep the public informed. This attitude put a different perspective on their hope of obtaining anonymity in the reports, or on the right to be forgotten online.

In conclusion, having regard to the margin of appreciation left to the national authorities when weighing up divergent interests, the importance of maintaining the accessibility of press reports which had been recognised as lawful, and the applicants’ conduct vis-à-vis the press, the Court considered that the Federal Court had not failed to comply with the German State’s positive obligations to protect the applicants’ right to respect for their private life and held that there had been no violation of Article 8.

References from the official web site of the European Court of Human Rights