Privacy, Data Protection and Retention
Barr v. American Assoc. of Political Consultants
Decision Pending Mixed Outcome
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The Oberlandesgericht Hamburg (Higher Regional Court of Hamburg) upheld the right to be forgotten and found that the Plaintiff had a right to be de-indexed from online articles, so that they wouldn’t appear in results of searches against his name. The Plaintiff had asked the Respondent newspaper to remove from its online archive articles that referred to criminal proceedings against him that had been dismissed on payment of a fine several years ago. The Court reasoned that deleting or changing the articles would infringe the Respondent’s constitutional right to freedom of the press but that the Plaintiff’s right to privacy would be infringed if the criminal proceedings could permanently be found by searching for his name on the website of a search engine. It reasoned further that if claims to delink certain content could be brought against search engines, as had been decided by the European Court of Justice in the “Google case” , there was all the more reason for them to be brought against the original provider of such content.
The Plaintiff is a communications consultant and the Respondent is editor of the daily newspaper “Süddeutsche Zeitung” and also manages its website where users can find current news as well as older news coverage. The online archive contained articles from 2010 and 2011 documenting the preliminary investigation of the Plaintiff by the public prosecutor.
In 2010, the Plaintiff was accused of sending a fax to a German politician with offensive and defamatory content following which the politician pressed criminal charges against him. However, the investigation was dismissed by agreement March 23, 2011 on payment of €40,000 by the Plaintiff. The investigation and its dismissal was criticized by the press including the Respondent newspaper.
Following dismissal, the Plaintiff complained that the relevant articles were still available in the Respondent’s online database. Moreover, he claimed that, even after 2012, the first three hits when googling his name would lead people to the Respondent’s website which contained the headlines of the relevant articles without explicitly stating the date of entry.
In front of a first instance court the Plaintiff requested that the Respondent should stop referring to his name when reporting about the investigation. On March 30, 2012 the court ruled against the Plaintiff holding that deleting or changing the content of the articles would constitute an infringement of the Respondent’s freedom of press rights. The Plaintiff appealed the decision.
The Oberlandesgericht Hamburg (OLG, Higher Regional Court of Hamburg) partly granted the appeal. The Court agreed with the lower court insofar as the Plaintiff was not entitled to have the articles deleted or changed. However, the Court decided that the Plaintiff had a right to be de-indexed from the disputed articles, so that they wouldn’t appear on the results of searches made against his name.
The Court reasoned that the articles covered true events, namely that there was a criminal investigation of the Plaintiff. Moreover, the articles did not prejudge him but simply reported that he was subject of those investigations. The Court acknowledged that the news coverage infringed the Plaintiff’s privacy interests, because it could damage his reputation but said that this had weighed against the Respondent’s right to freedom of press under Art. 5 Grundgesetz (GG, German Constitution). Because the articles concerned a German politician the public had an information interest in the investigation and thus, the right under Art. 5 GG outweighed the Plaintiff’s right.
Nevertheless, the Court stated that the Plaintiff’s right to privacy under Art. 2,1 GG would be infringed to a considerable degree if the articles about the preliminary criminal proceeding could be permanently found merely by searching for the Plaintiff’s name. Besides, the Court said, following “Google Spain” decided by the European Court of Justice, if claims to de-index content can be brought against search engines, they can also be brought against the original provider. Therefore, the Court granted the Plaintiff the request that the Respondent de-index the articles, so that they could not be found when searching against the Plaintiff’s name.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision has a mixed outcome. It contracts expression by upholding the right to be forgotten, but on the other hand expands expression by holding that it would be an infringement of the freedom of the press to order removal of articles that only reported on the suspicion against the plaintiff, did not prejudge him and referred to a subject which, at the time, had been of general public interest.
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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