Information Note on the Court’s case-law 219
June 2018
M.L. and W.W. v. Germany - 60798/10 and 65599/10
Judgment 28.6.2018 [Section V]
Article 8
Positive obligations
Article 8-1
Respect for private life
Refusal to oblige media to anonymise online archive material about a crime at the request of its perpetrators in view of their imminent release: no violation
Facts – In 1993 the applicants were convicted of the murder of a well-known actor and sentenced to life imprisonment. In 2007, with the date of their release from prison approaching, they brought proceedings against several media organisations, requesting that they anonymise archive documents which were accessible on their Internet sites and dated from the time of the trial (an article, a file and the transcription of an audio report).
In 2009 and 2010, while acknowledging that the applicants had a considerable interest in no longer being confronted with their conviction, the Federal Court of Justice ruled in favour of the media organisations, on the grounds that:
– the crime and the trial had attracted considerable media attention at the time; the public had an interest in being informed, which included the possibility of carrying out research into past events; it was part of the media’s role to participate in forming democratic opinion by making their archives available;
– the applicants had attempted fairly recently to have the proceedings in their case reopened; barely three years prior to their release, they had called on the press to transmit information about their most recent application for a retrial; until 2006 the web site of the second applicant’s criminal-defence lawyer had included multiple reports about his client;
– the documents in question had been placed under headings which clearly indicated that these were not new reports;
– it was necessary to take account of the risk that, in the absence of sufficient staff and time to examine requests for material to be rendered anonymous, the media would refrain from including in their reports identifying elements that could subsequently become unlawful.
The applicants considered that this approach failed to take account of the power of search engines.
Law – Article 8: The initial infringement of the applicants’ private life resulted in the present case from the decision by the media organisations concerned to publish the information and, especially, to keep it available on their web sites, even without the intention of attracting the public’s attention. The existence of search engines merely exacerbated the interference.
However, the obligations of search engines with regard to the individual concerned by an item of information could be different from those of the entity which originally published the information. In consequence, the balancing of the competing interests could result in different outcomes, depending on whether the deletion request was made against the entity which had originally published the information (whose activity was generally at the heart of what freedom of expression was intended to protect), or against a search engine (whose main interest was not in publishing the initial information about the person concerned, but in facilitating identification of all available information about him or her and creating a profile of it).
For the reasons set out below, the Court concluded that the refusal to grant the applicants’ request had not been in breach of the German State’s positive obligations to protect the applicants’ private lives. In view (i) of the national authorities’ margin of appreciation in such matters when weighing up divergent interests, (ii) of the importance of maintaining the availability of reports whose lawfulness had not been contested when they were initially published, and (iii) of the applicants’ conduct vis-à-vis the press, the Court discerned no strong reasons which would require it to substitute its view for that of the Federal Court of Justice.
(a) The contribution to a debate of general interest, and the issue of anonymisation on request – Notwithstanding their importance, the rights of a person who had been the subject of a publication available on the Internet had also to be balanced against the public’s interest – protected by Article 10 of the Convention – in being informed about past events and contemporary history through the press’s public digital archives.
In the present case, the availability of the impugned reports on the media organisations’ web sites at the time that the applicants lodged their requests continued to contribute to a debate of general interest which had not been diminished by the passage of a few years.
Admittedly, the applicants were not requesting the deletion of the material, but its anonymisation. Firstly, however, the approach to covering a given subject was a matter of journalistic freedom; it was left to journalists to decide what details (such as the full name of the person concerned) ought to be included to ensure the credibility of a publication, provided that these decisions corresponded to the profession’s ethical and deontological norms. Secondly, the obligation to assess at a later stage the lawfulness of a report following a request from the individual concerned – necessarily implying a weighing up of all the interests at stake – would entail a risk that the press would prefer to refrain from preserving such reports in their online archives or to omit the identifying elements that were likely to be concerned by any such request.
(b) The degree to which the person concerned was well known and the subject of the report – Admittedly, with the passage of time, the public’s interest in the crime in question had declined. However, the applicants had returned to the public eye when they attempted to have their criminal trial reopened and had contacted the press in this regard. Thus, they were not simply private individuals who were unknown to the public.
As regards the subject of the reports (the conduct of the criminal trial at the relevant time, or one of the applications to have the proceedings reopened), it was capable of contributing to a debate in a democratic society.
(c) The prior conduct of the person concerned with regard to the media – The applicants’ attempts to challenge their conviction had gone well beyond the mere use of the remedies available under German criminal law. As a result of their own conduct vis-à-vis the press, less weight was to be attached in the present case to the applicants’ interest in no longer being confronted with their convictions through the medium of archived material on the web sites of a number of media organisations. It followed that, even in the light of their impending release, they could no longer entertain a legitimate expectation of having the reports anonymised, or even of being forgotten online.
(d) The content, form and consequences of the publication – The impugned texts described, in an objective manner, a judicial decision. Admittedly, certain of the articles in question provided details about the defendants’ lives. However, such details formed part of the information that criminal-law judges were regularly required to take into consideration in assessing the circumstances of the crime and the elements of individual guilt, and in consequence generally formed part of the deliberations during public hearings. Furthermore, these articles did not reflect an intention to present the applicants in a disparaging way or to harm their reputation.
As to the extent of their publication, given their position in the architecture of the web sites in question, the impugned reports were not likely to attract the attention of those Internet users who were not seeking information about the applicants. Equally, there was nothing to suggest that maintaining access to those reports had been intended to re-disseminate information about the applicants.
As to the fact that the Internet intensified information and rendered it ubiquitous – in that, irrespective of the initial level of dissemination, the impugned material could be found on the Internet permanently, particularly through the use of search engines –, the applicants made no submissions as to any attempts by them to contact the operators of search engines requesting that they reduce the traceability of the relevant information. Moreover, the Court considered that it was not required to pronounce on the possibility that the domestic courts could have ordered measures that would be less restrictive with regard to the media organisations’ freedom of expression, given that these had not been part of the deliberations before those courts in the domestic proceedings nor, indeed, in the proceedings before the Court.
(e) The circumstances in which the photos were taken – The contested photographs did not contain any compromising elements. The likelihood that the photographs would lead third parties to recognise the applicants was also reduced by the fact that they showed the applicants’ appearance as it had been thirteen years prior to their release.
Conclusion: no violation (unanimously).
(See the research report on Internet in the Court's case-law and, more specifically, Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), 3002/03 and 23676/03, 10 March 2009, Information Note 117; Timpul Info-Magazin and Anghel v. Moldova, 42864/05, 27 November 2007; Węgrzynowski and Smolczewski v. Poland, 33846/07, 16 July 2013, Information Note 165 ; see also the judgment by the Court of Justice of the European Union in Google Spain SL and Google Inc., C-131/12, 13 May 2014, Information Note 174)
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This summary by the Registry does not bind the Court.
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