Lecture 8

Media freedom and the ‘right to be forgotten’

 The ‘right to be forgotten’
• Exponential increase of technological capacity to store and process
data

• Search engines’ comprehensive digital memory

• Desire for greater informational self-determination

‘The Canterville Ghost’ (Oscar Wilde, 1887)
 Outline
• Legislative background
• Opinion of AG Jääskinen and CJEU judgement in Case C-131/12,
Google Spain as regards the ‘right to be forgotten’
• Do media need to refrain from reporting about spent convictions?
 Directive 95/46 (DPD)
• Art. 12 (b): ‘…right to obtain the rectification, erasure or blocking of
data…, in particular because of the incomplete or inaccurate nature of
the data’
• Art. 14 (a): ‘right to object…on compelling legitimate grounds relating
to his particular situation to the processing of data relating to him…’
Regulation 2016/679 of 27 April 2016 on the protection of
natural persons with regard to the processing of personal data
• Art. 17 – Right to erasure (‘right to be forgotten’):
1. ‘…right to obtain from the controller the erasure of personal data…,
where:
(a) the personal data are no longer necessary…
.
(c) the data subject objects to the processing of personal data
pursuant to Art. 21 (1) [: unless the controller demonstrates
compelling legitimate grounds which override the interests of
the data subject]
Case C-131/12, Google Spain (13 May 2014)
In 1998, a Spanish daily newspaper published an announcement for a
real estate auction connected with attachment proceedings for the
recovery of social security debts owed by Mr Costeja Gonzalez (C), a
lawyer. C complained that a Google search under his name displayed
links to the said announcement. He requested that Google be obliged
to remove his personal data so that they no longer appeared in the
links to the newspaper.
Art. 7 Charter of Fundamental Rights of the
EU (CFEU)
Respect for private and family life

Everyone has the right to respect for his or her private and family life,
home and communications.
Art. 8 Charter of Fundamental Rights of the
EU (CFEU)
Protection of personal data
1. Everyone has the right to the protection of personal data
concerning him or her.
2. Such data must be processed fairly for specified purposes and on
the basis of the consent of the person concerned or some other
legitimate basis laid down by law. Everyone has the right of access
to data which has been collected concerning him or her, and the
right to have it rectified.
3. Compliance with these rules shall be subject to control by an
independent authority.
Art. 11 Charter of Fundamental Rights of the
EU (CFEU)
Freedom of expression and information
1. Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and
regardless of frontiers.
2. The freedom and pluralism of the media shall be respected.
 Conflict of rights
Right to privacy
and data
protection

Conflict
of
rights
Right to Freedom of
information expression
 Opinion of AG Jääskinen
• There is no absolute right to be forgotten under the DPD.

• A subjective preference by the data subject is not a compelling

legitimate ground.

• The fundamental right to information merits particular protection in

EU Law.

• Publishers of webpages equally enjoy protection under Art. 11 of the

Charter.
 CJEU judgement (I)
• A search on the basis of an individual’s name is liable to significantly
interfere with privacy.
• Mere economic interests of search engines do not justify this
interference.
• The data subject’s rights override as a rule the interest of internet
users.
• No need to remove info from source page and no need to prove
prejudice to the data subject.
 CJEU judgement (II)
• Liability of web publishers does not ensure effective protection.
• Para 84: ‘Given the ease with which information published on a
website can be replicated on other sites and the fact that the persons
responsible for its publication are not always subject to European
Union legislation, effective and complete protection of data users
could not be achieved if the latter had to obtain first or in parallel the
erasure of the information relating to them from the publishers of
websites.’
 Criticisms of the Google Spain judgement
• Inadequate regard for internet users’ right to information and for the
freedom of expression of webpage publishers and of search engines.

• Search engines are ill-equipped to balance privacy and freedom of

expression.

• Primary responsibility should lie with the source web page.

• Questionable effectiveness of the judgement in view of continuing

possibility of a google.com search.
Do media need to refrain from
reporting about past convictions?
 United Kingdom (I)
• A ‘spent’ conviction that has not attracted a prison sentence of more
than four years is treated for most purposes as if it has never taken
place.

• Past offenders do not have to declare spent convictions on most job

applications unless if they apply for a so-called ‘excepted position’.
 ` United Kingdom (II)
• In the UK, the reporting of a spent conviction can breach the
provisions of the 1974 Rehabilitation of Offenders Act (ROA).

• A defamation case would, however, be unlikely to succeed unless if, in

exceptional circumstances, malice could be proved.
High Court case NT1 & NT2 v Google LLC [2018]
EWHC 799 (QB)
• Two businessmen, NT1 and NT2, who were convicted a long time ago
brought a claim on the basis of the ‘right to be forgotten’.
• NT1 was unsuccessful as ‘he has not accepted his guilt’, ‘he remains in
business and the information serves the purpose of minimising the
risk that he will continue to mislead’.
• NT2 was successful as there is no risk of repeated wrongdoing and
the information is of no relevance to any business activities he might
engage in.
 Germany
Apollonia case

The Spiegel magazine online archive included articles about a high

profile murder case from the eighties, which were also retrievable by
way of a Google name search. The claimant, who had spent his
conviction, sought an injunction obliging the defendant to refrain from
publishing these pages in a manner that would identify him.
BGH judgement (13 Nov. 2012 –VI ZR 330/11)
• A targeted search is needed to find the articles in the Spiegel online
archive.
• A right to the deletion of all pages in online archives, which enable
the identification of a rehabilitated person, would amount to a
rewriting of history and to a full immunity for the perpetrator.
• The existence of ‘highly efficient search engines’ cannot alter this
finding.
• Appeal to the German Constitutional Court (BVerfG) is pending.
Sedlmayr case
• In 1993, the applicants were convicted of murdering a popular actor,
Walter Sedlmayr, and sentenced to life imprisonment.
• In 2000 the radio station Deutschlandradio ran a report on the
occasion of the anniversary of the murder. A transcript of the report
remained online in the radio station’s archive in 2007.
• The applicants brought proceedings requesting the anonymization of
the personal data in the transcript. Their conviction was not ‘spent’.
• The Federal Court of Justice held that these requests could not be
granted in view of the radio station’s right to freedom of
expression and the public’s interest in being informed.
ML and WW v Germany ([2018] ECHR 554)
• The applicants complained to the ECtHR that the decisions of the
German courts violated their right to privacy (Art. 8 ECHR).
• The ECHR found that:
• rendering material anonymous was a less restrictive measure in terms of
press freedom than the removal of an entire article. However, the approach
to covering a given subject was a matter of journalistic freedom.
• in view of the lawfulness of the reports, the applicants’ notoriety and the fact
that they have sought media attention in the past, there was no violation of
privacy.
 Final observations
• A convicted person’s right to be forgotten is more powerful against a
search engine operator than against a primary publisher.

• The balance between privacy/personality rights and freedom of

expression is struck differently in different jurisdictions.

• Is it justified to leave it to Google to find ‘one size fits all’ solutions?

• Considerable uncertainty remains after Google Spain