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M. L. v. Germany

Closed Expands Expression

Key Details

  • Mode of Expression
    Electronic / Internet-based Communication
  • Date of Decision
    June 28, 2018
  • Outcome
    Article 10 Violation
  • Case Number
    App. Nos. 60798/10 and 65599/10
  • Region & Country
    Germany, Europe and Central Asia
  • Judicial Body
    European Court of Human Rights (ECtHR)
  • Type of Law
    International/Regional Human Rights Law
  • Themes
    Privacy, Data Protection and Retention
  • Tags
    Freedom of press, Right to be forgotten

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Case Analysis

Case Summary and Outcome

The European Court of Human Rights ruled that the public’s right to freedom of expression outweighed the right to privacy of two German individuals who had sought the anonymization of personal information contained in media reports of the individuals’ criminal convictions. The two individuals had been convicted of the murder of a popular German actor in 1991 and, in 2000, they had sought to have the case reopened. The media had reported on the application to have the case reopened at the time, but in 2007, the individuals sought an anonymization of those media reports. After the German Courts had held that the individuals were not entitled to the anonymization on the grounds that it infringed the right of the public to be informed of matters of public interest, the individuals approached the European Court of Human Rights. The Court upheld the German Federal Court’s finding that there is an ongoing public interest in events that occurred in the past, and concluded that the refusal to anonymize the media reports did not infringe the individuals’ right to privacy.


Facts

In 2000, a German radio station (Deutschlandradio) broadcast 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. M.L. and W.W. were released on probation in August 2007 and January 2008 respectively.

In 2007, M.L. and W.W. brought proceedings requesting the anonymization of the personal data included in the transcript of the radio station’s report from 2000 which had remained in the radio’s archive.

On February 29, 2008, the Hamburg Regional Court upheld M.L. and W.W’s request. The Court emphasized the right to be forgotten of the two individuals balanced against the public interest in being informed about the conviction. The Court noted 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 upheld the judgment of the Regional Court.

On December 15, 2009, the Federal Court of Justice overturned the judgment of the Court of Appeal, holding that the Court had not taken into consideration the right to freedom of expression of the broadcaster and the public interest to be informed about the convictions. The Federal Court of Justice held that there is an ongoing public interest in events that happened in the past, and highlighted that, in any event, 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.

In addition to the case brought against the radio station, M.L. and W.W. brought two similar proceedings against the magazine Der Spiegel and the daily newspaper Mannheimer Morgen. The first case concerned five articles about the conviction published in the 1990s, and the second one dealt with an article published in 2001, which – like the radio report – referred to the failure to have the case reopened. 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.

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 European Convention on Human Rights (the Convention).


Decision Overview

The issue before the European Court of Human Rights was whether M.L. and W.W.’s rights to privacy outweighed the right to freedom of expression enjoyed by the media.

The Court observed that the case involved the conflict between two fundamental rights protected by the Convention: 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. The Court 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.

The Court placed this case in the context of digital channels of communication having increased the risk for privacy. It examined the conflict between the two rights, and 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 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. 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.

Accordingly, the Court held that, having balanced the two rights, there was no violation of article 8.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

In this judgment, the European Court of Human Rights supported the protection of media archives under article 10 of the Convention, and the Court highlighted the potential chilling effect coming from the request of anonymization against media organizations in respect of archived articles.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related International and/or regional laws

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Official Case Documents

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