M.L. AND W.W. v. Germany: Recent Developments in Judicial Balancing of Privacy and Free Speech Online

Authored by Oleg Soldatov*

The role of courts in formulating current global agenda

One should not underestimate the role of courts in formulating the current global agenda. Some researchers even speak of the ‘judicialisation’ of legal regimes: that is, the feedback effect of judicial law-making, where states delegate significant ‘political property rights’ to courts. This effect is amplified by ‘judicial globalization’, which is a ‘process of judicial interaction across, above, and below borders, exchanging ideas and cooperating in cases involving national as much as international law’.

Nowadays more often than ever the courts must find an appropriate balance between competing human rights. Barak sees judicial balancing as ‘a metaphor, which assumes the shape of a scale’, on one side of which are the goals to be achieved, while on the other side are the limitations on rights. Whenever courts attempt to solve the ‘balancing equation’, they have to decide between the marginal benefit to the public good and the marginal limitation on human rights. In the digital era, ‘the demands of a democratic society and its obligations towards protecting individual rights must be balanced against the need and appetite for electronic commerce and information technology’. The speed of cyberspace development so far provides evidence that ‘the technical ability leads the policy component, which in turn is ahead of the legal and wider political framework’.This predicament gives momentum to the various searches for solutions in areas that are lagging behind technical developments.

Internet, freedom of expression and personal data protection: what do the courts say?

In 2016, the European Court of Human Rights Judge, Robert Spano, acknowledged that in its current state the Internet is unique, as a rich variety of content is made immediately available to anyone who can afford the relatively minimal cost of access; individuals can communicate their views, ideas, and thoughts to others; and individuals have equal opportunities for communication. People may prefer using the World Wide Web to prior forms of media (such as television networks) and communication (such as telephone) because the Internet allows ‘multiway’ simultaneous forms of communication, and gives users the ability to reach large numbers of people very quickly. This has had serious implications for freedom of expression. Individuals seeking to exercise this right can encounter all kinds of limitations, introduced with goals such as combatting defamation or hate speech online . In this regard, courts act as the last line of defence, deciding or defining whether the laws or administrative practices that, on the surface, have a legitimate purpose, are not ‘a pretext for blocking or censoring the Internet’.

The demands of a democratic society and its obligations towards protecting individual rights must be balanced against the need and desire of information technology. Finding the equilibrium between personal data protection – a right to respect for one’s private life – with freedom of expression one is one of the areas where courts can and do make a difference. However, in Europe there is no single judicial framework for protection of human rights. The European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) are both charged with examining the consistency of national laws and measures with human rights norms. The decisions of these courts often complement each other.  

The right to be forgotten: data privacy-oriented approach

Back in 2014 CJEU Case C-131/12 Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González set a benchmark concerning the “right to be forgotten”. As is well known, the Google Spain case concerned the enforceability of the rights set forth by the EU Data Protection Directive vis-á-vis Internet search engine service providers. It is unnecessary to repeat full circumstances of the case, as it was analysed on many occasions . In a nutshell, CJEU found that an internet search engine operator is responsible for the processing that it carries out of personal data which appear on web pages published by third parties. Thus, if, following a search made on the basis of a person’s name, the list of results displays a link to a web page which contains information on the person in question, that data subject may approach the operator directly and, where the operator does not grant his request, bring the matter before the competent authorities in order to obtain, under certain conditions, the removal of that link from the list of results. Such conditions include, but are not limited to, the data in question becoming inadequate, irrelevant or no longer relevant, in the light of the time elapsed.

In the reasoning of CJEU, its ‘data privacy-oriented’ approach was confirmed by the lack of references to freedom of expression and information. It was observed that the excessive protection of the right to be forgotten puts at risk the necessary protection afforded to the right of expression, and particularly to the right of each Internet user to be properly and fully informed.

The right to be forgotten: M.L. AND W.W. v. Germany

Recently, another case, this one before ECtHR, concerning the “right to be forgotten” surfaced. The judgment in M.L. AND W.W. v. GERMANY developed case-law on the subject and filled in gaps in the understanding of how this novel concept must be applied.
In these proceedings, the applicants before ECtHR were half-brothers, sentenced to life imprisonment in 1993 by German courts for murder and subsequently released on probation in 2007 and 2008.  In 2007 they brought proceedings against the radio station Deutschlandradio, the weekly magazine Der Spiegel and the daily newspaper Mannheimer Morgen, requesting anonymity of the personal data in the documentation on them which had appeared on the respective Internet sites and concerned the applicants’ crimes. Their applicants’ requests were subsequently turned down by the Federal Court of Justice of Germany. While it recognised that M.L. and W.W. had a considerable interest in no longer being confronted with their convictions, this interest was overridden by the media outlets’ right to freedom of expression, the public’s interest in being informed about a topical event and in being able to conduct research into past events. The Federal Court had also reiterated that one of the media’s tasks was to participate in creating democratic opinion, by making available to the public old news items that were preserved in their archives.

Relying on Article 8 of the European Convention on Human Rights (right to respect for private life), the applicants complained about the refusal by the German courts to issue an injunction prohibiting the defendant media from keeping on their Internet portal the transcript of a radio programme by Deutschlandfunk and articles by Der Spiegel or the Mannheimer Morgen about their criminal trial and their conviction for murder. They complained of an infringement of their right to respect for their private life by Internet users. The interference complained of by the applicants resulted from the decision by the media concerned to publish and conserve this material on their websites; while the search engines amplified the scope of the interference.

ECtHR sided with the Federal Court of Justice and agreed entirely with its conclusions. It acknowledged that the rights of a person who had been the subject of an internet publication had to be balanced against the public’s right to be informed about past events and contemporary history, particularly using digital press archives. In so far as M.L. and W.W. were not asking for the removal of the reports in question, but only that they be anonymised, ECtHR noted that rendering material anonymous was a less restrictive measure in terms of press freedom than the removal of an entire article. However, it 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 and deontological norms. In consequence, the Court considered that the inclusion in a news report of individualised information, such as the full name of the person concerned, was an important aspect of the press’s work, especially when reporting on criminal proceedings which had attracted considerable attention. Last but not least, ECtHR observed that the applicants were not simply private individuals who were unknown to the public at the time their request for anonymity was made. The reports in question concerned the conduct of the criminal trial and thus constituted information capable of contributing to a debate in a democratic society.

It remains to be seen how the case-law of the two high-level European courts concerning the “right to be forgotten” develops in future. One thing is clear: as the sum of all knowledge online keeps growing, the need to balance free expression and data protection imperatives becomes more and more pertinent, and the courts should be ready to address these questions in an efficient and just manner.

*Oleg Soldatov is a PhD researcher at Bocconi University in Milan, Italy. He used to work as a lawyer at the European Court of Human Rights in 2011-2014 and as a legal advisor at the Council of Europe in 2015-2016.