For all the discussion about the General Data Protection Regulation, it should not be forgotten that article 8 ECHR encompasses important aspects of data protection, too. The European Court of Human Rights has developed a large body of case law in that regard. The recent judgment in M.L. and W.W. v. Germany adds to this jurisprudence.
Facts
The applicants had been convicted to lifelong imprisonment for murdering the popular German actor Walter Sedlmayer. The conviction was entirely based on circumstantial evidence and the applicants had protested their innocence until the end. After the judgment became final, they had attempted several times to re-open the proceedings, presenting what they deemed new exculpatory evidence. On at least one occasion, they had informed the media about their efforts to have the judgments against them quashed. In 2007 and 2008, they were released from prison.
In 2000, the German radio station ‘Deutschlandradio’ published a report about the murder. The full names of the applicants were mentioned. A transcript of the report was available on the website of the radio station until at least 2007.
The applicants initiated civil proceedings against the radio station. They demanded that their names be anonymized and their personal data removed from the transcript. After the first two instances had granted their request, the Federal Court of Justice ruled in favor of the radio station. It pointed out that a balance had to be struck between the applicants’ reputation and personality rights on the one hand and the right to freedom of expression exercised by the radio station on the other hand. The interest of a convicted criminal not to be confronted with his crime anymore grew stronger over the time. In particular after the person in question had served his sentence in full it was not easy to justify to publish his name. However, the right to be forgotten was not absolute. Freedom of expression had to be taken into consideration, too. Factors to be considered when balancing these considerations were the gravity of the interference with the reputation, the way in which the perpetrators were portrayed as well as how widely the publication was distributed. On the basis of these factors, the Federal Court of Justice ruled that publishing the personal data in the archive was lawful.
It stated that the crime in question had attracted a lot of public attention. Also, the report had not only portrayed the applicants as perpetrators but had also provided information on their version of the facts. Finally, the archive on the website of ‘Deutschlandradio’ was not very widely read. Thus, the freedom of expression had to prevail over the protection of the applicants’ personality rights.
The applicants also initiated separate proceedings in regard to a publication on the website of German news magazine ‘Der Spiegel’. ‘Der Spiegel’ had published on its website a so called ‘dossier’ under the title ‘Walter Sedlmayer – assasination with a hammer’. The ‘dossier’ contained a collection of articles pertaining to the crime and the ensuing criminal procedure. One of these articles contained the applicants’ name and information on their family background. In addition to that, there were photos showing the applicants in court and next to the murdered actor.
The Federal Court of Justice deemed these publications lawful, too.
Finally, the German newspaper ‘Mannheimer Morgen’ featured an article in which the applicants’ names were mentioned. Again, the Federal Court of Justice held that the publication was lawful.
The applicants submitted an application to the European Court of Human Rights.
Legal assessment
General remarks
The Court pointed out that the notion ‘private life’ was a broad term not susceptible to exhaustive definition. It could also encompass various aspects of a person’ identity, among them the legitimate expectation that certain information regarding a person would not be disseminated. If information about a person was spread contrary to legitimate expectations this person harbored, this might interfere with the right to private life. Article 8 ECHR could, however, not be invoked to have information or reports removed from the public domain if the spreading of this information was a foreseeable reaction to a person’s own behavior.
The Court stated that a balance had to be struck between the applicants’ legitimate interest that their right to private life be protected and the freedom of expression exercised by the media concerned. The Court underscored the essential role free media played in a democratic society. it was also a corollary task of the media to put information at the disposal of the public by storing it in publicly accessible archives. This task was, if not the main duty of the media, of certain importance.
The European Court of Human Rights pointed out that national authorities enjoyed a certain margin of appreciation when striking the balance between the respect for private life and the freedom of expression. If national authorities weighed the competing interests in accordance with the criteria developed in the Court’s jurisprudence, strong reasons were required for the Court to substitute their judgment with its own.
Difference between media and search engines
The Court pointed to the difference between search engines and the publication of information in the internet through media: The media made the information available, while search engines only contributed to their distribution (or amplified them). Thus, the activity of media concerned the core of freedom of expression, which was not the case for search engines. Consequently, the process of striking the balance between the protection of private life and the interest of persons disseminating information could lead to different results in regard to media and search engines respectively.
The Court made reference to the judgments of the European Court of Justice in the matter ‘Google Spain’ , in which the European Court of Justice had dealt with the ‘right to be forgotten’. In this matter, an individual had demanded from a Spanish newspaper as well as from Google to remove information about him in connection to a insolvency or to ensure that this information was not shown in search results when internet users ‘googled’ his name. The European Court of Justice pointed out that the justification of the request might have to be assessed differently in regard to the newspaper and the search engine, since the former could invoke freedom of the press, the latter not.
Criteria developed in the Court’s jurisprudence
Contribution to a debate of public interest
The Court pointed out that the murder of the actor Walter Sedlmayer and the ensuing criminal trial had attracted a lot public attention. This held true not only for the initial proceedings but also for the attempts to achieve a re-opening of proceedings. The Court endorsed the balancing exercise undertaken by the Federal Court of Justice. According to the Court it did not make a difference that the applicants only demanded an anonymization of the reports, not their deletion. The removal of personal data constituted an interference with the freedom of expression, too.
Notoriety of the applicants and topic of the report
The European Court of Human Rights pointed out that the German courts had not dealt with this criterion. It stated that the applicants had not been known to the public prior to their crime; their notoriety had been diminished in the course of time but not disappeared completely.
Previous conduct of the applicants
The Court pointed out that the applicants had turned to the media to inform them about their attempts to have the proceedings re-opened and the conviction overturned. Thus, their interest in remaining anonymous was diminished.
Form, content and consequences of the publication
The Court noted that most of the articles had been objective. Also, the facts that the applicants protested their innocence and had tried to a achieve a re-trial had been mentioned, too. While some articles published by ‘Der Spiegel’ had been questionable, all reports were within the confines of what was protected by freedom of expression.
Photos
The Court briefly dealt with the photos that had been published. It stated that the pictures were 13 years old which rendered it less likely that somebody was going to recognize the applicants on the basis of these photos.
The European Court of Human Rights concluded that the German courts had stayed within their margin of appreciation when declaring the publication lawful. The Court did not find a violation of article 8 ECHR.