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16.10.2015

Germany: Court orders newspaper to delink online articles so they do not appear in searches and uphold the right to be forgotten

Tobias Raab

On 7 July 2015, the Higher Regional Court of Hamburg decided that the right to be forgotten can be claimed against the provider of an online archive of a newspaper (Case no. 7 U 29/12).

The plaintiff applied for injunctive relief against the publisher of a newspaper and operator of the newspaper’s website. This website did not only offer reports on the current events of the day, but also stored past articles in an online archive. Among those articles were reports on preliminary proceedings against the plaintiff from 2010 and 2011. According to the criminal complaint, the plaintiff was accused of anonymously sending offensive and defamatory faxes to a politician. The proceedings were closed for the payment of a fine of 40,000 € by the plaintiff. He had complained about the fact that the defendant kept the articles online in the archive. Even in the year 2012, the articles had remained the top three Google search results when entering the applicant’s name into the search engine. The applicant requested an order restraining the defendant from publishing the identifying articles about the criminal proceedings against him.

In the first instance, the Regional Court of Hamburg dismissed the complaint with its judgement of 3 March 2012 (Case 324 O 9/12). The Court decided that it would mean a massive infringement of the freedom of the press to order the defendant to delete or change the online articles and that this could not be justified by the applicant’s right to privacy, as the articles only reported on the suspicion against the plaintiff, but did not prejudge him and referred to a subject which at that time had been of general public interest.

Following the plaintiff’s appeal, the Higher Regional Court of Hamburg annulled the contested decision and partly granted the appeal. The judges decided that the applicant did not have a claim to the articles to be changed or deleted from the defendant’s online archive as the plaintiff’s privacy interests did not outweigh the defendant’s freedom of the press rights as foreseen by article 5 (1) of the German Constitution (Grundgesetz). However, the Court allowed the appeal as far as the applicant requested the defendant to delink the disputed articles, so as to prevent them from appearing as search results in the lists of search engines. The Court stated that, if information about the preliminary criminal proceedings could permanently be found by just searching for the plaintiff’s name on the website of a search engine, the plaintiff’s right to privacy would be infringed to a not inconsiderable degree. Furthermore, the Court stated that, if such claims to delink certain content could be brought against search engines, as decided by the European Court of Justice in the “Google case” (case no. C-131/12), all the more reason to decide they could be brought against the original provider of such content.

The Higher Regional Court’s judgement is available here.

Tobias Raab is a research assistant at the Institute of European Media Law (EMR), Saarbrücken/Brussels.



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