On June 28, 2018, the European Court of Human Rights decided that Germany had correctly denied two individuals their “right to be forgotten” requests in connection with press archives relating to a 1991 murder. The two individuals were convicted of the murder of a well-known German actor. They were released from prison in 2008 and brought actions against a German radio station and a weekly magazine asking that articles and radio interviews relating to the 1991 murder be removed from their website archives. The matter reached the German Supreme Court, which held that the interests of the public in having access to the information outweighed the interference with the plaintiffs’ privacy rights.

The two individuals then sued Germany before the European Court of Human Rights (ECtHR) arguing that Germany had violated their privacy rights under Article 8 of the European Convention on Human Rights.

The ECtHR found that the German Supreme Court had correctly applied the balancing test relating to right to be forgotten claims. Although the Court analyzed extensively the CJEU’s Google Spain case law, the ECtHR’s finding is based solely on Article 8 of the European Convention on Human Rights, which provides for a broad right to privacy. The ECtHR said that the availability of the press articles on the 1991 murder created an interference with the plaintiffs’ privacy rights under Article 8, and that consequently a right to be forgotten request of this type can potentially be made under the European Convention. However, the Court then pointed out that the privacy right under Article 8 had to be balanced against freedom of expression and freedom to access information under Article 10 of the European Convention.

The ECtHR underlined the importance of internet archives in historical research and information:

“[T]he availability of internet archives contributes greatly to the preservation and to the accessibility of news and information. Digital archives constitute a precious source for teaching and for historical research in particular because they are immediately accessible to the public and generally provided free of charge.”

Referring to previous ECtHR case law, the Court mentioned that internet websites can have a higher impact on individual privacy rights than traditional print media, and that search engines can contribute to an amplification effect. This is why the balancing test for a right to be forgotten claim may come out differently when applied to a search engine compared to when applied to the underlying media website. This is consistent with the CJEU’s Google Spain decision. But a balancing between competing fundamental rights is still required.

Balancing is a matter of national law and the Court said it should in general give deference to the conclusions of the national judges. Nevertheless, the ECtHR must examine whether the national judge stayed within the limits of the European Convention on Human Rights and prior case law of the ECtHR.

In this case, the Court found that the German Supreme Court had properly balanced the right of privacy against the freedom of expression rights of the web publishers and of the public. The German court had found that there is a very high public interest in being able to access information about important past events such as the murder case at issue. The German court also found that the news archive items were not broadcast widely, but on the contrary had to be requested and searched for individually on the websites of the relevant publishers. The German court also found that the plaintiffs themselves had taken actions to put themselves in the limelight by seeking extensive press coverage around their battle to get their conviction annulled and to obtain removal of the archives from the internet. In light of all these factors, the ECtHR found that Germany had properly balanced the fundamental rights at stake when denying the right to be forgotten request.

The main takeaways of the case are:

• Article 8 of the European Convention on Human Rights provides a potential basis for right to be forgotten claims in addition to the GDPR;
• The ECtHR imposes a systematic balancing test between privacy and freedom of expression when evaluating right to be forgotten claims. The court considers the degree of contribution to the public debate and historical research, the degree of visibility of the content, i.e. whether it is pushed out broadly to the public versus available only through individual search, and the conduct of the plaintiffs, i.e. whether they put themselves in the limelight.
• Balancing of fundamental rights is a matter of national law, and the ECtHR will give deference to the national balancing as long as it stays within the limits of the ECtHR case law.

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