Defamation / Reputation, Press Freedom, Privacy, Data Protection and Retention
Bloomberg LP v. ZXC
Closed Contracts Expression
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The European Court of Human Rights unanimously decided that de-indexing requests against online publishers can be successful and in the present case, did not violate the publisher’s freedom of expression protected by Article 10. The applicant was an editor-in-chief of an online newspaper that published an article describing a fight at a restaurant and the criminal proceedings that ensued. The person described in the article requested the applicant to remove and de-index the article which was not granted. The Italian courts held that by not de-indexing the article, the publisher had made the article easily accessible online for a significant period and violated the applicant’s right to reputation protected by Article 8. The ECtHR upheld the decision. It also upheld the non-pecuniary damages granted to the applicant against the editor, in consideration of the sensitive nature of the personal data published. It found that publishing supplementary or clarificatory information would be insufficient to balance the applicant’s right’s under Article 8 against the publisher’s rights under Article 10.
Mr. Alessandro Biancardi (the applicant) was the editor-in-chief of an online newspaper. On March 29, 2008, he had published an article about a fight in a restaurant that had involved a stabbing. The article was titled: “Fight in the restaurant – the head of the police authority closes the W and Z restaurants”. The restaurant belonged to the X family. The article mentioned X brothers and their sons and the possible motive for the fight – unresolved ownership over a building issue.
On September 06, 2010, one of the X brothers (V.X.) and W restaurant requested the applicant, in a formal notice, to remove the article from the internet. This application was denied. Subsequently, they filed two lawsuits to the district court – against the applicant and Google Italy, seeking to de-index the article. At a hearing, the applicant stated that the article had been de-indexed “for the sole purpose of settling the case” [fn. 1].
The plaintiffs withdrew the lawsuit against Google, and the issue of breach of the plaintiffs’ privacy was to be resolved.
The district court awarded each claimant 5,000 euros for non-pecuniary damage and 2,310 euros for costs and expenses. The court relied on Articles 7, 11, 15, and 25 of the domestic personal data protection code. It stated that the article remained visible for about two years (from 29 March 2008 to 23 May 2011) and that the applicant had not acted under the plaintiffs’ formal notice. The court acknowledged the need for informing the public, but such need ceased to exist at some point in time, at the latest on the day of the plaintiffs’ formal notice. Hence, the processing of personal data of V.X. violated Articles 11 and 15 of domestic data protection law. The reputation of the plaintiffs was, thus, violated. The court also stressed that the article had been easily accessible “by simply inserting the claimants’ names into the search engine, and that the nature of the relevant data, as regards judicial proceedings, was sensitive” [para. 13].
The applicant appealed before the Supreme Court. The Supreme Court upheld the lower court decision. It said that the processing of the plaintiffs’ personal data had been unlawful since the article published on 29 March 2008, remained easily accessible on the internet, despite the formal de-listing notice sent by V.X. on 6 September 2010.
In a unanimous decision, the Court held there was no violation of Article 10.
The applicant argued that V.X. was not entitled to the right to be forgotten. Since the criminal proceedings against V.X. had not been finalised at the time the Italian Supreme Court made its decision, the information published could not be considered excessive. Further, the applicant relied on journalistic freedom guaranteed by domestic law and argued he had been unjustly held liable since only a search engine (in this case, Google Italy) was able to de-index the article. Drawing support from similar cases, the applicant argued that rights under Article 8 and Article 10 could be balanced without de-indexing, by requiring publishers to publish clarifications to the impugned article.
The Government argued that the purpose limitation set out under domestic law allowed maintenance of data when the reason for collection still existed. In the present case, since the applicant only stated material facts without providing further developments on the case, the article no longer remained of public interest and the period of its publication could be said to be excessive. The Italian courts had balanced Article 8 and Article 10 by requiring the applicant to de-index the article instead of removing it from internet archives. This way, people who were genuinely interested in the matter could still access the article. Countering the applicant’s argument, the government argued that the obligation to de-index material could not only be imposed on search engines but also on the administrators of online newspaper or journalistic archives.
Several third party interveners including 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 argued against de-indexing, highlighting the importance of online speech, dangers of press censorship and the public’s right to be informed.
The Court differentiated the present case from its earlier decisions as it was not related to offensive content or its removal. Instead, it related to the applicant’s decision to keep the published information easily accessible despite de-indexing requests from V.X. The central issue was “the length and ease of access to the data concerned and not their simple maintenance on the Internet” [para 50].
The Court observed that the non-indexing feature on Google allowed the applicant to de-index the article. Agreeing with the government, the Court observed that the obligation to de-index could be imposed “not only on Internet search engine providers but also on the administrators of newspaper or journalistic archives accessible through the Internet” [para. 51].
The fact that there had been an interference with the applicant’s right to freedom of expression under Article 10, the interference was prescribed by law and pursued a legitimate aim was undisputed. The issue for review was whether such interference was necessary in a democratic society.
Drawing the difference between removing an article permanently and de-indexing it, the Court indicated one important feature of the case – “the applicant was held liable not for not removing the article, but for not having de-indexed it” [para. 58]. It was possible for an excessive period simply to type names of plaintiffs “in order to access information related to the criminal proceedings involving V.X.” [para. 58].
Even though the ECtHR had developed several criteria for assessing the competing interests protecting a persons’ right to reputation under Articles 8 and the rights of a publisher under Article 10 (Axel Springer AG v. Germany, App. no. 39954/08 (2012) § 89-95), the court believed that this case was not comparable to the Axel Springer case. While Axel Springer had concerned printed articles about a public figure, the present case concerned an online publication of a private individual. Therefore, the strict application of Axel Springer criteria would not be appropriate. The Court stressed that it should examine the context of the whole case, i.e. whether “the domestic courts’ finding of civil liability on the part of the applicant [had been] based on relevant and sufficient grounds, given the particular circumstances of the case” [para. 63].
The important features of the context were: “(i) the length of time for which the article was kept online – particularly in the light of the purposes for which V.X.’s data was originally processed; (ii) the sensitiveness of the data at issue and (iii) the gravity of the sanction imposed on the applicant” [para. 64].
The Court noted that although the criminal proceedings against plaintiffs had been pending at the time the Supreme Court had issued its decision, the article had not been updated and the article had been easily accessible for eight months. As a result, the domestic legislation “support[ed] the idea that 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” [para. 66].
2. Sensitiveness of the data at issue
The court observed that the article was about a criminal proceeding. It concluded, “that the circumstances in which information concerning sensitive data is published constitutes a factor to be taken into account when balancing the right to disseminate information and the right of a data subject to respect for his or her private life” [para. 67].
3. Gravity of the sanction imposed on the applicant
The Court believed that the award for non-pecuniary damages (5.000 EUR per plaintiff) although not negligible, was not excessive.
Citing Palomo Sanchez and Others v. Spain, the court observed that when national courts follow the criteria laid down by the ECtHR in balancing Article 8 and Article 10 rights, then “the Court would require strong reasons to substitute its view for that of the domestic courts” [para. 68].
The court concluded that the applicant’s failure to de-index the article and the impact of the continued presence of the article on V.X’s right to reputation justified restricting the applicant’s right to freedom of expression.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts freedom of expression. The Court clarified that de-indexing requests are not limited to search engines and can be brought against news publishers, including journalists, maintaining online archives. The court considered factors such as sensitivity of the data published, the private nature of the applicant, the fact that the article was not updated and that the request was for de-indexing, not removal, to conclude that the applicants right to reputation under Article 8 outweighed the applicants right to publish information under Article 10.
Jacob van de Kerkhof, writing for Strasbourg Observers, further noted that the judgment widens the scope of the right to be forgotten weighing in favor of the right to private life over the right to freedom of expression when the case concerns de-indexation. “That weight is reinforced by a seemingly shorter period in which an article can be considered ‘newsworthy’, especially when the claimant is relatively unknown to the public.”
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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