Journalistic freedom: the right to be forgotten cannot always be recognised

In the judgment in question (case of ML and WW Germany – applications nos. 60798/10 and 65599/10), the European Court of Human Rights unanimously states that there is no violation of Article 8 (right respect for private life) of the European Convention on Human Rights.

The case concerns the refusal of the German Federal Court of Justice to prohibit three different online publications from giving the public access to information and articles relating to the conviction of the plaintiffs named by their full names for the murder of a known actor.

The Court agrees with the finding of the German Federal Tribunal that the media have, in this way, enabled the formation of a democratic opinion by making available to the public old public information stored in their archives.

The Court recalls that in this case there is full application of the principle of journalistic freedom and that Article 10 of the Convention leaves it up to journalists to decide which details are to be published provided that these choices comply with the ethical and deontological standards of the profession . The inclusion in a journalistic report of data of a personal nature, such as the full name of the defendant, is an important aspect of the journalist’s work, especially when dealing with criminal proceedings that have aroused considerable public interest that the passage of time does not has weakened.

The Court further notes that, during their last request for a retrial in 2004, the applicants themselves approached the press to which they forwarded a substantial number of documents in order to inform the public. This behavior certainly contradicts their hope for anonymization regarding the case at hand or the right to digital oblivion.

In conclusion, the Court considers that, in the present case, in consideration of the legitimacy of access to news for the persistence of the public interest and also in consideration of the behavior of the appellants towards the press, there are no valid reasons to contradict the decision of the Federal Court of Justice.

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In fact, the problem of the right to be forgotten historically arises precisely in relation to the exercise of the right to journalistic reporting. In fact, the prerequisite for a private fact to legitimately become the subject of news is the public interest in the news. The community must be informed promptly, so as to be able to know what happened in real time and completely, so as to provide it with a clear view of the fact.

But once the public has been fully informed of the fact, the public interest ceases as the community has now acquired the fact. There is no more news. Repeating the event would be useless, since there would no longer be a real interest of the community to satisfy. Not only useless for the community, but also harmful to the negative protagonists of the story.

The right to be forgotten is therefore the natural consequence of a correct and logical application of the general principles of the right to report. Just as the fact whose diffusion (harmful) does not respond to a real public interest should not be disseminated, so the old news (harmful) should not be re-proposed when this is no longer responsive to a current information need.

But a further foundation of the right to be forgotten must be found in theart. 27paragraph 3 of the Constitution, according to which “The penalties […] they must aim at the re-education of the condemned”. It is the principle of the re-educational function of the sentence. This, that is, must not only have the function of punishing, but also (and above all) that of promoting the social reintegration of the convict, his restitution to civil society. Well, the penalty could not fulfill the function of returning the condemned person to civil society if the memory of what the condemned person did remained firmly in the latter. I remember that it would be strengthened precisely by the repetition of the same fact. And this should apply to both minor crimes and more heinous ones.

But with limits. As in the case examined by the ECHR, there are facts so serious that the public interest in their re-proposition never fails. Think of the crimes against humanity, for which recognizing their perpetrators the right to be forgotten would even be harmful to education. Or to other serious facts that are reproposed precisely so that they are not forgotten. Or even to events that can be said to have changed the course of events becoming history, such as the attack on the Pope, the “Moro case”, the most striking facts of “Tangentopoli”. Here we cannot speak of the right to be forgotten because facts never become “private”. On the contrary, it would be precisely their failure to re-propose that would be in contrast with the public interest, which here always prevails over the individual’s right not to be remembered anymore. But with the exception of cases in which the public interest is destined not to weaken, the right to be forgotten always kicks in, starting from the moment in which the public interest around a fact ceases because it is now acquired. For the negative protagonist of the story, that fact becomes “private” and his right to confidentiality acquires fullness.

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Since the right to be forgotten is subject to the continuation of the lack of public interest, it may happen that after some time a public interest arises in the re-proposition of the same fact. This is the case of those who, having been convicted of rape years earlier, commit another sexual assault as soon as they get out of prison.

Here, not only the dissemination of the news relating to the latest violence becomes legitimate, but also the re-enactment of the old crime, since it stimulates the inevitable debate in public opinion on the re-educational function of prison, as well as on the measures to be taken to counter a real plague social. Just as the re-enactment, thirty years later, of the Circeo massacre against Angelo Izzo was legitimate, after he had replicated its ferocity, thus denying any hypothesis of repentance.

The right to be forgotten, therefore, must be contrasted with the so-called “right to history”. In fact, precisely on the basis of what is stated in the EU jurisprudence, the right to be “forgotten”, in whole or in part, must be viewed with particular attention. It is not always right to remove real, truthful and correct information from the public space , which when it was published was certainly of news interest and certainly of public interest. And all in the name of the interest of the individual. This interest can be countered by a greater interest of a public nature. In reality, our story is now being told to us on the Internet, or in any case digitally.

Therefore, unconditionally passing this principle that each of us can take back all the information concerning him published by third parties, in fifteen years when someone (assuming that the Internet still exists) wants to retrace the history of the 2000s through online information, would probably draw the erroneous conclusion that ours was a happy age lived by decent people. It is obvious, in fact, that if they can, everyone will go and remove what they don’t like, in order to have the best online “reputation” possible.

Journalism has been changed by the development of the Internet. The possibility of collecting, cross-referencing, exchanging and archiving personal information has increased enormously, allowing for an extraordinary circulation and diffusion of knowledge and opinions. The consequence is that today it has become extremely difficult to exercise the right to be forgotten as legitimate requests for deletion or updating must also take into account the various virtual places where such information appears: on the site, on the cached copy of the web page, on the titles which constitute the result of the search through the search engine.

Each of these places has a different data controller and for non-European search engine managers there is the obstacle of the applicable discipline. In short, once you enter the electronic circuit of the network, it is really difficult to assert your rights.

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(Altalex, July 24, 2018. Note by Michael Iaselli)


Journalistic freedom: the right to be forgotten cannot always be recognised