The right to be forgotten risks becoming a tool to curb free press

Online news archives highlight the tension between the right to know and the right to be forgotten.

Michael J. Oghia
9 July 2018


Online archives are a flash point in the on-going battle over the right to be forgotten. Image: DRs Kulturarvsprojekt (CC BY-SA 2.0)

Ever since the Court of Justice of the European Union (CJEU) handed down its decision in the landmark 2014 case of Google Spain v AEPD and Mario Costeja González, a war of rights has quietly waged in courtrooms across Europe. Out of the spotlight, and largely downplayed by journalists after the initial coverage of the aforementioned CJEU case, the battle between the right to know and the right to forget has forged ahead. This clash of rights has largely played out over decisions regarding the so-called “Right to be Forgotten” (RTBF) – the highly nuanced legal principle that, within the European context, enables an individual to request personally identifiable information be scrubbed from content to render it less accessible, and/or have the content removed from search engine indexes.

On the surface, RTBF-related policy and jurisprudence seems reasonable. Not only is the amount of personal data available online bountiful, but it is often hard to escape our increasingly digitalized pasts. Thus, empowering individuals with the right to remove information about themselves is not only understandable, but also in line with Article 8 of the European Convention on Human Rights. At the same time, however, the ability to alter or hide information online poses new challenges to press freedom and those seeking to protect freedom of expression and the right to information.

Nowhere is the tension between the right to know and the right to forget more pertinent than with online archives

Considering that perception is largely shaped by the information people have access to, determining what information is relevant and who has the power to determine its relevance over time is central to press freedom and democracy itself. Nowhere is the tension between the right to know and the right to forget more pertinent than with online archives, especially those belonging to media and news organizations. Archives are a critical component of a democracy, a fact Jacques Derrida underscored in his 1995 book Archive Fever when he wrote: “Effective democratization can always be measured by this essential criterion: the participation in and the access to the archive.”

This quote reflects why a decision handed down on 26 June 2018 at the European Court of Human Rights (ECtHR) is such a significant win for advocates of press freedom. Ever since the CJEU case in 2014, press freedom advocates have suffered loss after loss, as multiple courts have empowered individuals, elites, and governments to essentially censor content or remove it altogether. Such was the case of the Belgian newspaper Le Soir, which was ordered in 2016 to remove information from their archives after a member of the public, who had been involved in a traffic accident, sued them, demanding all reference to the matter be expunged from the paper’s archives. It also includes a case in Italy involving the small online publisher PrimaDaNoi, where the highest Italian court upheld a ruling in 2016 stipulating that after a period of two years, an article in an online news archive is allowed to expire.

The case of M.L. and W.W. v. Germany in Strasbourg, however, was different this time. It concerned the refusal by Germany’s Federal Court of Justice to issue an injunction prohibiting three different media from continuing to allow internet users access to documentation concerning the applicants’ – M.L. and W.W. – conviction for the murder of a famous actor and mentioning their names in full. As the ECtHR stressed, it concurred with 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. Bearing this in mind, the ECtHR determined that the public’s right to access archived material online took precedence over the right of convicted persons to be forgotten, and held, unanimously, that there had been no violation of Article 8 of the European Convention on Human Rights.

Journalism has traditionally acted as public record, which means any changes to news archives could have a significant impact over time. This is why developments such as last week’s court decision and the newly implemented General Data Protection Regulation (GDPR) are absolutely relevant to journalism and the media development community. RTBF-related policy and jurisprudence are rapidly developing, and as I highlighted in a report for the Center for International media Assistance (CIMA) earlier this year, it is evolving outside of Europe in ways that often empower governments with yet another tool to curb journalism and free expression.

Last week’s decision was a welcomed win for the free press, but the battle is far from over.

This article was originally published by the European Centre for Press and Media Freedom.

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