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03.07.2018

Europe's top court backs Germany: murderers have no right to be forgotten

by Michael J. Oghia 

German courts were right to refuse permission for two convicted murderers to have their names and crimes deleted from media archives and search engine indexes. This is a crucial case for press and media freedom....

            

Europe's top court backs Germany: murderers have no right to be forgotten Michael J. Oghia. Photo by LinkedIn

Ever since the Court of Justice of the European Union (CJEU) handed down its decision in the landmark 2014 caseof Google Spain v AEPD and Mario Costeja González, a war of rights has been quietly waged in courtrooms across Europe. Out of the spotlight, and largely downplayed by journalists after the initial coverage of the aforementioned CJEU case, the battle between the right to know and the right to forget has forged ahead. This clash of rights has largely played out over decisions regarding the so-called “Right to be Forgotten” (RTBF) – the highly nuanced legal principle that, within the European context, enables an individual to request personally identifiable information be scrubbed from content to render it less accessible, and/or have the content removed from a search engine index.

On the surface, RTBF-related policy and jurisprudence seems reasonable. Not only is the amount of personal data available online bountiful, but it is often hard to escape our increasingly digitalised pasts. Thus, empowering individuals with the right to remove information about themselves is not only understandable, but also in line with Article 8 of the European Convention on Human Rights. At the same time, however, the ability to alter or hide information online poses new challenges to press freedom and those seeking to protect freedom of expression and the right to information.

Censoring online archives 

Considering that perception is largely shaped by the information people can access, deciding what information is relevant and who has the power to determine its relevance over time is central to press freedom and democracy itself. Nowhere is the tension between the right to know and the right to forget more pertinent than with online archives, especially those belonging to media and news organisations. Archives are a critical component of a democracy, a fact Jacques Derrida underscored in his 1995 book Archive Fever when he wrote, 

Effective democratisation can always be measured by this essential criterion: the participation in and the access to the archive.

This quote reflects why the decision handed down on June 26 2018 at the European Court of Human Rights (ECtHR) is such a significant win for advocates of press freedom. Ever since the CJEU case in 2014, press freedom advocates have suffered loss after loss, as multiple courts have empowered individuals, elites, and governments to essentially censor content or remove it altogether. Such was the case of the Belgian newspaper Le Soir, which was orderedin 2016 to remove information from their archives after a member of the public, who had been involved in a traffic accident, sued them, and demanded all reference to the matter be expunged from the paper’s archives. It also includes a case in Italyinvolving the small online publisher PrimaDaNoi, where the highest Italian court upheld a ruling in 2016 stipulating that after a period of two years, an article in an online news archive is allowed to expire.  

No right for murderers' names to be forgotten

The case of M.L. and W.W. v. Germanyin Strasbourg, however, was different this time. It concerned the refusal by Germany’s Federal Court of Justice to issue an injunction prohibiting three different media from continuing to allow Internet users access to documentation concerning the applicants’ – M.L. and W.W. – conviction for the murder of a famous actor and mentioning their names in full. As the ECtHR stressed, it concurred with the findings of the German Federal Court- It 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. Bearing this in mind, the ECtHR determined that the public’s right to access archived material online took precedence over the right of convicted persons to be forgotten, and held, unanimously, that there had been no violation of Article 8 of the European Convention on Human Rights.

Journalism has traditionally acted as public record, which means any changes to news archives could have a significant impact over time. This is why developments such as this ECTHR court decision and the newly implemented General Data Protection Regulation (GDPR) are absolutely relevant to journalism and the media development community. RTBF-related policy and jurisprudence are rapidly developing, and as I highlightedin a report for the Center for International media Assistance (CIMA) earlier this year, and presented at the European Centre for Press and Media Freedom’s 2018 Game Changer conference https://ecpmf.eu/events/game-changer-digitalmediafreedom-leipzig it is evolving outside of Europe in ways that often empower governments with yet another tool to curb journalism and free expression. 

The decision was a welcomed win for the free press, but the battle is far from over.

Michael J. Oghia is the communications manager for the Global Forum for Media Development (GFMD), and a Belgrade-based independent consultant, researcher, and editor working within the Internet governance and media development ecosystems. Twitter: @mikeoghia

 

             

 





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