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Germany: Court backs public access to online archives over convicts’ ‘right to be forgotten’

Human rights judges declared today that the public’s right to access archived material online took precedence over the right of convicts to be forgotten.

In today’s Chamber judgment  in the case of M.L. and W.W. v. Germany (application nos. 60798/10 and 65599/10) the European Court of Human Rights held, unanimously, that there had been:

no violation of Article 8 (right to respect for private life) of the European Convention on Human Rights.

The case concerned the refusal by the Federal Court of Justice to issue an injunction prohibiting three different media from continuing to allow Internet users access to documentation concerning the applicants’ conviction for the murder of a famous actor and mentioning their names in full.

The Court shared the findings of the German Federal Court, which had reiterated that the media had the task of participating in the creation of democratic opinion, by making available to the public old news items that had been preserved in their archives.

The court reiterated that the approach to covering a given subject was a matter of journalistic freedom and that Article 10 of the Convention left it to journalists to decide what details ought to be published, provided that these decisions corresponded to the profession’s ethical norms.

The inclusion in a report of individualised information, such as the full name of the person in question, was an important aspect of the press’s work, especially when reporting on criminal proceedings which had attracted considerable attention that remained undiminished with the passage of time.

The court noted that during their most recent request to reopen proceedings in 2004, M.L. and W.W. had themselves contacted the press, transmitting a number of documents while inviting journalists to keep the public informed.

This attitude put a different perspective on their hope of obtaining anonymity in the reports, or on the right to be forgotten online.

In conclusion, having regard to the margin of appreciation left to the national authorities when weighing up divergent interests, the importance of maintaining the accessibility of press reports which had been recognised as lawful, and the applicants’ conduct vis-à-vis the press, the court considered that there were no substantial grounds for it to substitute its view for that of the Federal Court of Justice.

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