Case Summary and Outcome

The Federal Constitutional Court of Germany reversed a Federal Court ruling that an individual convicted of murder did not have the right to have his name removed from online articles about the murder and his trial. The individual had sought to have his name removed from the articles published by a German magazine and the articles themselves removed from general internet search results of his name. The Federal Court had held that the magazine’s right to freedom of expression outweighed the individual’s personality rights. However, the Federal Constitutional Court held that the Federal Court had not given enough weight to the impact of the articles on the individual’s everyday life and had not considered all the options open to the magazine to balance their right to freedom of expression with the individual’s personality rights. The Federal Constitutional Court noted that the Federal Court is the appropriate forum to determine a suitable solution and so remanded the case back to the Federal Court for a final determination.

Facts

In 1982, Mr T was convicted of murder after killing two people and seriously injuring another by shooting them on board a yacht while crossing the Atlantic Ocean. After serving his sentence he was released from prison in 2002.

In 1982 and 1983, DER SPIEGEL, a German magazine, published three articles concerning the murder trial which identified Mr T by name. From 1999, the articles could be accessed freely and without any restrictions through the magazine’s online archive. They can also be found easily when entering Mr T’s name into common search engines, and these articles are listed among the top search results.

In 2009, after Mr T first found out about the online articles, he sent a cease-and-desist letter to DER SPIEGEL. After that was unsuccessful, he lodged an action for an injunction against DER SPIEGEL from publishing reports about the crime with reference to Mr T’s last name. He brought this claim on the grounds that the continued accessibility of the articles was a violation of his general right of personality under Art. 2(1) and 1(1) of the German Basic Law.

Both the first and the second instance courts found that there was a violation of Mr T’s personality rights. They held that while there is a special interest of the general public in a case like Mr T’s murder trial, the coverage does have a stigmatizing effect on the individual involved. With the passage of time an offender has a growing interest in the right to be forgotten. The permanent, worldwide accessibility of the coverage without any restrictions makes this impossible.

On November 13, 2012 the Federal Court of Justice rejected Mr T’s action. It found that DER SPIEGEL’s right to freedom of expression under Art. 5(1) outweighs Mr T’s personality rights due to the significance of the murder trial in recent history. This interest justified unaltered coverage including Mr T’s name because he is inextricably linked to the case.

On November 6, 2019, the case came before the Federal Constitutional Court of Germany.

Decision Overview

The central issue for the Court to determine was whether Mr T’s general right of personality under Art. 2(1) and 1(1) of the German Basic Law was infringed by the continuing availability of articles about his trial on the DER SPIEGEL’s online database and general search engines.

Mr T accepted the significance of the trial in recent history and that there was a general public interest in the events. However, he argued that this does not include the interest of the public in knowing his name, especially because of the fact that whenever anyone enters his name into an online search engine the articles appear at the top of the search results. He submitted that this easy accessibility to information about his connection to the case burdens any social relationship he may wish to have.

The Court balanced Mr T’s general right of personality under Art. 2 (1) and 1(1) and the newspaper’s right of freedom of expression and press under Art. 5 (1). The right of personality promotes the free development of every individual and simultaneously protects that development from any reporting and the spread of information which limits it. This includes, inter alia, comments which shed a negative light on a person and their reputation. Nevertheless, this does not give a person absolute control over how they are perceived by others. The right to freedom of expression under Art. 5(1)(1) protects the dissemination of information in any form of communication. The right to freedom of the press under Art. 5(1)(2) protects a publishing company’s decision to make articles accessible in their online archives.

The Court found that the protection against negative press coverage limiting the free development of a person had to be weighed against the basic function of the press to report about criminals and crimes. In balancing these two interests the Court had to take into account the concrete circumstances including the nature and extent of the coverage as well as considering the time passed since the event.

The Court noted that the focus of interest in a case like Mr T’s trial shifts with the passage of time: while recent crimes focus on the criminal himself and the details of the crime, older crimes focus on the motivation behind the crime and its (legal) consequences. The criminal himself has a growing interest in being forgotten and thus being reintegrated into society.

In recognizing the effect of modern technology on the balancing act, the Court acknowledged that what makes that balancing even more challenging is that online information is permanently accessible, whereas articles in print used to be accessible to the public only for a limited period of time after which they would be forgotten. This is especially significant for whomever is mentioned in the articles as the information included in the article can be accessed and, more importantly, used by anyone at all times: anyone is able to share the articles themselves or even put the information in a completely different context. The Court found that it is not their task to stop this development, but that it is their duty to protect a person in a way that makes it possible to leave old mistakes behind: everyone should be granted the opportunity to be forgotten and start fresh, and this includes a criminal’s reintegration into society. With reference to the European Court of Human Rights case of M.L. and W.W. v. Germany ECtHR No. 60798/10 and 65599/10, the Court stressed that the right to be forgotten also has a human rights dimension.

The Court also acknowledged that limiting the press to anonymous coverage of a criminal trial would be an infringement on the right to freedom of the press. Online archives are an important source for journalistic and historical research and therefore need to be complete, and the Court stressed that in a democratic society this plays an important role in regard to the public debate. It is therefore not possible to oblige the newspaper to destroy the articles completely as that would be an unjustified infringement of the newspaper’s right to the freedom of press.

In applying these legal principles to the present case, the Court evaluated the Federal Court’s decision in detail. It agreed with the general balancing of the opposing rights, but criticized the Federal Court for not taking into account how much the online articles still affect Mr T in his daily life even after twenty years. The Court noted that it needed to be kept in mind that a quick Google search of a new colleague or acquaintance is not unusual. For Mr. T this means a constant fear of meeting new people because they might find out about his past, and this potentially leads to a retreat from the public and therefore makes his integration back into society harder. The Court said that this should also have been given more weight by the Federal Court.

Additionally, the Court found that the Federal Court did not take into account the different options the newspaper had aside from deleting Mr T’s name or the entire online article. These alternatives could be arrangements which ensure that the articles do not appear when searching Mr T’s name while still keeping the articles fully accessible in the newspaper’s online archive. The Court stressed that it is for the Federal Court to find a suitable solution and therefore reversed the decision on the grounds that Mr T’s general right of personality was violated, and remanded it back to the Federal Court for final determination.