Content Regulation / Censorship, Press Freedom, Privacy, Data Protection and Retention
AMM v. News Group Newspapers
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The Higher Regional Court of Hamburg held that operators of online newspaper archives had an obligation to de-index certain articles from search results of a person’s name, just as search engine providers do following the CJEU judgment in Google Spain. The case concerned Plaintiff X, who requested that four articles about past criminal proceedings against him be taken down, modified or de-indexed since they were outdated and harmed his right to privacy. The Hamburg Regional Court refused to order that the articles be taken down or modified, citing freedom of the press. However, with regard to de-indexing, the Hamburg Regional Court reasoned that a balance must be struck between the right to privacy and freedom of expression, particularly at a time when information is easily and permanently accessible online. The Hamburg Regional Court balanced the two interests by ruling that operators of an online archives could only be obliged to de-index articles from search results following appropriate notice from the person concerned.
Plaintiff X (full name redacted by the judicial authorities) was a communications consultant who was accused of anonymously sending offensive and defamatory faxes about a politician in 2010. Following these accusations, criminal proceedings were initiated against Plaintiff X by the Public Prosecutor. However, the criminal proceedings were terminated on March 23, 2011 after Plaintiff X agreed to pay a 40,000 EUR fine.
Newspaper X (also redacted by the judicial authorities) was a national newspaper that had a print and online publication. The online platform offered access to an archive of old articles. Between 2010 and 2011, the newspaper published four articles concerning Plaintiff X and the proceedings against him. The articles were subsequently moved to the online archive. In 2012, the articles could be accessed through the top three Google search results when entering Plaintiff X’s name into the search engine.
In September 2011, Plaintiff X sent a letter to Newspaper X requesting that it refrain from using his name and other identifiable information in the articles, and to update the articles to reflect that the proceedings against him were closed. Newspaper X did not comply with the request. Plaintiff X then sought a judicial order for the modification or deletion of the articles.
On March 30, 2012, the District Court of Hamburg dismissed the plaintiff’s claim. The District Court held that the articles were distributed lawfully and that satisfying Plaintiff X’s demands for modification or deletion would significantly interfere with the right to freedom of the press. Plaintiff X appealed the decision, and added to his appeal a request for the articles to be de-indexed from search results.
On July 7, 2015, the Higher Regional Court of Hamburg (Court) issued its decision. The Court held that Plaintiff X could not request that the articles be amended or deleted. Nonetheless, the Court upheld the appeal to the extent that Newspaper X could be under an obligation to de-index the articles from search results of Plaintiff X’s name.
The Court began by considering the plaintiff’s claim for deletion or modification of the articles. The Court began by noting that the articles themselves were accurate reports of the events at the time. Furthermore, the articles did not claim that Plaintiff X was guilty of a crime, but merely suspected of having committed a crime by the Public Prosecutor. The Court acknowledged that the articles still affected Plaintiff X’s right to personality and potentially harmed his reputation as they portrayed him in a negative light. However, there was significant public interest in the articles since they concerned Plaintiff X’s alleged statements about a public figure, a politician. Additionally, the articles clarified how the justice system responds to attempts to harm a public person’s personality rights. In light of the above, the Court held that the information should not be deleted or modified as such an order would unjustifiably interfere with the newspaper’s right to freedom of expression (Article 5(1) of the German Constitution).
The Court then turned to the de-indexing claim. The Court highlighted that the indexing of the articles online made the articles about Plaintiff X permanently retrievable with ease. According to the Court, this perpetually interfered with Plaintiff X’s right to privacy and reputation. Furthermore, citing the Lebach decision of the Federal Constitutional Court from June 5, 1973, the Court reiterated that legitimate public interest in being informed about crimes or incidents of a similar nature decrease over time. This principle was particularly applicable to situations such as the one at hand, where the criminal proceedings against Plaintiff X were terminated before a final conviction.
However, the Court recognized that a balance had to be struck between the right to privacy and the right to freedom of the press. The Court made two observations about the right to freedom of the press in relation to newspaper archives. First, the Court explained that an obligation to amend or delete articles at a later date might harm freedom of the press because the press might choose to report differently (e.g. by writing less critical articles) to avoid being subject to a legal claim later. Second, the Court recalled that, in addition to informing the public about current events, the press also served a function of preserving information on past events. Such events might be subject to renewed public attention, or be of historical or scientific interest.
The Court focused on the balancing of the right to privacy and the right to freedom of expression in the specific context of indexed search results that appear upon the search of a person’s name. The Court noted that the personality rights of individuals will be particularly affected in this context, because people generally do not search other people’s names for public interest reasons (e.g. colleagues at work searching about the people they work with). The Court observed that those searching for historical or scientific purposes will generally use other search terms.
The Court concluded that the conflict between the two rights could be adequately resolved if the operators of online newspaper archives stored articles in such a way that they could not be retrieved by simply entering a person’s name into an online search engine. The Court reasoned that this approach would alleviate the interference caused to the person’s right to privacy, while only slightly impairing the right to freedom of the press (the press would not be obliged to subsequently change lawfully published articles). The Court observed that this was the approach adopted in the Google Spain judgment from the Court of Justice of the European Union with regard to search engines. The Court proceeded to add that the operator of a newspaper archive, which in this case was Newspaper X, could be obliged to take similar action to a search engine. No evidence was presented by Newspaper X to suggest that this would require disproportionate effort on its part.
The Court went on to note that internet “hosts”, such as the operators of newspaper archives, were not under a general obligation to monitor their content for illegality. As a consequence, the Court drew on case law concerning intermediary liability to conclude that the operator of a newspaper archive would only be obliged to de-index (in accordance with this judgment) upon receipt of appropriate notice from the person who was claiming that their right to privacy had been infringed. This condition was met in the present case. Thus, the Court allowed the appeal and recognized that Newspaper X was under an obligation to de-index the relevant articles.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision has a mixed outcome. The decision applied the principles underlying the “right to be forgotten” to oblige the operators of newspaper archives to de-index certain articles. Such a decision restricts users’ ability to access such articles, and hinders the right to receive and impart information online. Nonetheless, the decision does reiterate the importance of the press in providing and preserving information for the public. With this in mind, the decision attempts to apply the “right to be forgotten” in such a way that it impacts minimally on the right to freedom of the press. For instance, operators will not be under a general obligation to de-index. Instead, the obligation will only arise upon receipt of appropriate notice from the individual claiming their right to privacy has been infringed. Furthermore, the de-indexing only relates to search results that show in response to a search of a person’s name. This means articles can still be retrieved using other search terms. The decision also places the obligation to de-index on the source of the web page that had been indexed, rather than a third-party search engine. This is noteworthy since publishers in many jurisdictions have been effectively excluded from the “right to be forgotten” process.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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