Case Summary and Outcome

The European Court of Human Rights (“ECtHR”) rejected an application concerning violation of the right to privacy and a demand for the right to be forgotten, with respect to a murder conviction under Article 8 of the European Convention on Human Rights (“ECHR”). The case concerned two German individuals, M.L. and W.W., who were sentenced to life imprisonment on account of the murder of a popular German actor in 1991. In 2000, they had sought to have the case reopened but had been unsuccessful, subsequent to which local media had reported, on the occasion of the anniversary of the murder, on the story and the applicant’s attempt to have the case reopened at the time. In 2007, the individuals sought an anonymization of those media reports. The German Federal Court ruled that they were not entitled to the anonymization, on the ground that doing so infringed the right of the public to be informed of matters of public interest. The individuals later approached ECHR, which upheld the German Federal Court’s finding that there is an ongoing public interest in events that occurred in the past. The Court concluded that the public’s right to freedom of expression outweighed the right to privacy and thus, did not constitute an infringement of their right under article 8.

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Facts

The applicants, M.L. and W.W., were half-brothers who were sentenced to life imprisonment on May 21, 1993 based on circumstantial evidence. The individuals were convicted for the 1991 murder of a very popular actor, W.S.

Subsequent to their conviction, the applicants’ lodged several applications for the reopening (Wiederaufnahme) of the proceedings, first in 1994 and then again in 2000 and 2004. In all instances, their application was rejected. M.L. and W.W. were released on probation in August 2007 and January 2008 respectively.

In 2000, a German radio station (Deutschlandradio) broadcasted a report regarding two individuals’ conviction for murdering a popular actor in 1991. The report named the individuals, M.L. and W.W, and stated that an application they had made to the Constitutional Court to have their case reopened had failed. Notably, the transcript of this report remained available on the website of the radio station, archived in the section entitled “Older news items” under Kalenderblatt, until at least 2007.

In 2007, M.L. and W.W. brought proceedings against the radio station in the Hamburg Regional Court, requesting the anonymization of the personal data included in the transcript of the radio station’s report from 2000. In a second set of proceedings, the applicants’ also brought two claims against a weekly magazine Der Spiegel, which had published a series of articles between 1991 to 1993 disclosing applicants’ full names, giving a detailed account of the murder of W.S., his life, the criminal investigation and the evidence gathered by the prosecuting authorities, as well as referring to the failure of the applicants’ to have their case reopened. Two of those articles included photographs, one showing the two applicants in the courtroom of the criminal court and another showing the first applicant with a prison officer, and a third showing the second applicant with W.S. Finally, in a third set of proceedings, the applicants’ also brought proceedings against the daily newspaper Mannheimer Morgen to remove an article disclosing their full names and published on the website.

On February 29, 2008, the Hamburg Regional Court upheld M.L. and W.W’s request with respect to the first set of proceedings, declaring that the two applicants’ interest in no longer being confronted with their acts after their conviction outweighed the public’s interest in being informed about the applicants’ involvement in those acts. The Court emphasized the right to be forgotten of the two individuals was a superior right of the two, and that the information about M.L. and W.W. was no longer relevant as the public had been sufficiently well informed about the matter at the time it was first reported.

On July 29, 2008, the Court of Appeal, by virtue of two judgments, upheld the decision of the Regional Court. The Court noted that the applicants’ personality rights were violated and they were entitled to “special protection” with a view to allow them to reintegrate into the society. Since the applicants’ faced the risk that other persons (viz. co-workers, neighbours etc.) could identify the applicants’ names and contribute to further spread of their involvement in the crime, it was essential to grant them such protection. The fact that information on the internet was often made permanently available to users was not adequate to alter the decision. With respect to the radio station’s freedom of expression, the Court also held that the infringement of the radio station’s right was minimal as the ruling did not prohibit dissemination of material but merely placed a condition to not disclose their names.

On December 15, 2009, the Federal Court of Justice in two judgments overturned the decision of the Court of Appeal and the Regional Court, holding that the lower courts had not taken into consideration the chilling effect on the right to freedom of expression of the broadcaster (the radio station) that the ban sought by the applicants’ could have, as well as the public interest involved in being informed about the conviction. Specifically, the Appellate Court held that there is an ongoing public interest in events that happened in the past, given reports concerning criminal offences were part of “contemporary history” which the media had a responsibility to report on. By referring to the judgment in Österreichischer Rundfunk v. Austria (no. 35841/02, § 68, 7 December 2006), the Court also pointed out that even if the offenders had served their sentence, they could not claim an absolute right to not be confronted with their wrongdoing. In any event, it held that the report containing M.L. and W.W.’s names could only be found by users by searching for information directly related to the two individuals. [p. 8]

With respect to second set of proceedings, the Federal Court of Justice adopted the same reasoning in these cases as it had in the case against the radio station. The Court held that offenders do not have the benefit of the right to have reports naming them deleted and particularly not in the context of capital crimes. In the context of the photos, the Court agreed that under section 23(1)(1) of the Copyright Act, the person whose right is infringed is allowed to claim protection from publication of photos if their legitimate interests were infringed. However, in the present case, the photos – first, of the applicants’ in the dock in the courtroom; second, of the first applicant accompanied by a prison officer; and, third, of the second applicant with W.S. – served the purpose of illustrating the articles authenticating the reports and did not affect the applicants more than a photo showing their profile and taken in a neutral context. Consequently, the Court concluded that the applicants had no legitimate interest, within the meaning of section 23(2) of the Copyright Act, in prohibiting the publication of the photos. [p. 12] The applicants’ other proceedings were also declined by the Courts.

Against the judgment of the lower courts, M.L. and W.W. filed a constitutional appeal at the Federal Constitution Court. On July 6, 2010, the Federal Constitutional Court declined to hear the appeal. In October 2010, M.L. and W.W. approached the European Court of Human Rights, arguing that the failure to anonymize media references to their names was a violation of their right to privacy under article 8 of the ECHR.

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Decision Overview

The Fifth Section of the European Court of Human Rights (“ECtHR”) delivered the judgment of the Court. The principal issue before the ECtHR was whether M.L. and W.W.’s rights to privacy outweighed the right to freedom of expression enjoyed by the media/broadcasters.

Article 8 of the ECHR details the right of every individual to respect for private and family life, except in circumstances where the exercise of such right is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Whereas, under Article 17 of the General Data Protection Regulation (“GDPR”), data subjects have a right to obtain from the controller the erasure of personal data concerning them.

With respect to the alleged violation of Article 8 of the ECHR, the applicants’ complained that being permanently branded as murderers on the internet would make their reintegration in the society impossible. They also argued that an express request for anonymity would not restrict the broadcasters’ freedom of expression. The government, on the other hand, claimed that imposing an ongoing obligation on the media to verify their digital archives in order to make reports anonymous would constitute excessive interference. [p. 24] Interestingly, the government argued that Directive 95/46/EC and the Federal Data Protection Act (transposing the Directive) merely did not guarantee the right to be forgotten but merely laid down the conditions under which personal data had to be deleted.

The Court observed that the case involved a conflict between two fundamental rights protected by ECHR: M.L. and W.W’s right to respect for their private life under article 8 and the right to freedom of expression of the media under article 10. It noted that the right to freedom of expression did not refer only to the right enjoyed by the specific media outlets in this case, but that it included the general freedom of the press in informing the public.

ECtHR observed that the interference with the applicants’ enjoyment of right to respect for their private life was, prima facie, a consequence of the decision of media outlets to publish information and keep it available on their website. At the outset, the Court distinguished between the obligations of search engines towards the individual who is the subject of the information may from those of the entity which originally published the information. It held that the Court must accord different standards of assessment for a request for deletion concerning the original publisher of the information, whose activity is generally at the heart of what freedom of expression is intended to protect, versus a search engine whose main interest is not in publishing the initial information about the person concerned, but in particular in facilitating identification of any available information on that person and establishing a profile of him or her. [p. 30]

Consequently, the Court placed this case in the context of digital channels of communication having increased the risk for privacy. While examining the conflict between the two rights, it applied a balancing test by considering the contribution by the articles to a debate of general interest; the notoriety of the persons concerned and the object of the report; the prior conduct of M.L. and W.W. in respect of the media; and the content, form and impact of the publication.

The Court held that there was an interest in the news of the crime and conviction as well as the attempts to have the case reopened, and that there is a public interest in being informed about past events. The Court observed that requiring the content providers to either monitor their archives to remove personal information or cease archiving their work would create a chilling effect on the enjoyment of freedom of expression.

The Court also noted that M.L. and W.W. were notable figures as a result of their conviction and this created a legitimate expectation for the public to be aware of developments. Citing case law, it concluded that the legitimate interest of the public in access to the public internet archives of the press is protected under Article 10 of the Convention and particularly strong reasons must be provided for any measure limiting access to information which the public has the right to receive. [p. 31]

Notably, in so far as the applicants’ argument was concerned – that they were not requesting that the impugned reports be deleted, but only that their names no longer appear in them – the Court cited journalistic freedom under Article 10 to declare that ECHR leaves it to journalists  to decide what details ought to be published in order to ensure an article’s credibility, provided that the choices which they make in that regard are based on their profession’s ethical rules and codes of conduct.

In addition, M.L. and W.W. had sought to involve the press in their attempts to have the matter reopened. The Court referred to the reports in question, and commented that they had described the judicial decision objectively and noted that the information in the articles was limited as it was restricted to the news pages of the websites and to those with paid access. Besides, given the considerable public attention the applicants’ received because of the nature and circumstances of the crime and the fame of the victim, the Court also concluded that the applicants were not simply private individuals unknown to the public at the time their requests for anonymity were made.

It is also important to note that with respect to the requirement of legitimate expectation under section 23(1)(1) of the Copyright Act, the ECtHR also held that given the applicants’ conduct towards the press, it was only possible to conclude a limited legitimate expectation of obtaining anonymity in the reports or even a right to be forgotten online. Consequently, the applicants’ interest in no longer being confronted with their conviction through the information stored on the Internet portals of a number of media outlets was considered by the Court as “less significant” in the present case. [p. 33]

Accordingly, considering the importance of maintaining access to reports, the applicants’ conduct towards the press and in view of the margin of appreciation afforded to national authorities in weighing conflicting interests, the Court held that there was no violation of article 8 of the ECHR.

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