Information Note on the Court’s case-law 256
Judgment 25.11.2021 [Section I]
Freedom of expression
Civil sanctioning of an editor for lengthy refusal to de-index article on a criminal case against private persons, easily accessible by typing the latter’s names into Internet search engine: no violation
Facts – The applicant, editor-in-chief of an online newspaper, published an article about a fight, followed by a stabbing, which had taken place in a restaurant, and the related criminal proceedings. One of the accused and the restaurant requested that the article be removed from the Internet. The applicant initially refused to do so, but eventually, eight months later, de-indexed the article in an effort to settle the case they had brought before the domestic courts. The latter, however, found the applicant liable for not having de-indexed it for an excessive period of time despite the plaintiffs’ formal request, thus allowing anyone to access information related to the criminal proceedings in issue by simply typing into the search engine the names of the restaurant or of the accused. The applicant was ordered to pay EUR 5,000 to each plaintiff in compensation for the breach of their right to respect for their reputation.
Law – Article 10:
(1) Preliminary remarks:
The present case departed from the previous Article 10 and 8 cases of the Court related to the content of an Internet publication (Delfi AS v. Estonia [GC]), or to the way an information is published as for instance, its anonymisation or qualification (M.L. and W.W. v. Germany). What was at stake in the present case was the length and ease of access to the data concerned and not their simple maintenance on the Internet. Indeed, the crux of the case related to the applicant’s failure, for an excessive period and despite the plaintiffs’ formal request, to de-index from the Internet search engine the tags to the article published by him.
The terms “de-indexing”, “de-listing” and “de-referencing”, often used interchangeably in different sources of European Union and international law, indicated the activity of a search engine consisting of removing, on the initiative of its operators, from the list of results displayed (following a search made on the basis of a person’s name) Internet pages published by third parties that contain information relating to that person. Technically, de-indexing could also be carried out by an editor. Therefore, the obligation to de-index material could be imposed not only on Internet search engine providers, but also on the administrators of newspaper or journalistic archives accessible through the Internet.
(2) The Court’s assessment of the proportionality of the impugned interference:
The strict application of the criteria in the context of balancing freedom of expression and right to reputation set out in Axel Springer AG v. Germany [GC] would be inappropriate because of the factual differences with the present case. The former case had concerned the publication, by the applicant company, of print articles reporting the arrest and conviction of a well-known television actor whereas the present case dealt with the maintenance online, for a certain period of time, of an Internet article concerning a criminal case against private individuals.
Therefore, two main features characterised the present case: (1) the period for which the online article had remained on the Internet and the impact thereof on the right of the private individual in question to have his reputation respected; (2) the nature of the data subject in question, a private individual not acting within a public context as a political or public figure. Indeed, anyone, well-known or not, could be the subject of an Internet search, and his or her rights could be impaired by continued Internet access to his or her personal data.
Thus, the Court paid special attention to the following three criteria.
(a) The length of time for which the article had been kept online, particularly in the light of the purposes for which claimant’s data had been originally processed.
The criminal proceedings had still been pending at the time that the Supreme Court had adopted its judgment in the applicant’s case. However, the information contained in the article had not been updated since the occurrence of the events in question. Moreover, notwithstanding the formal notice that the claimant had sent to the applicant requesting the removal of the article from the Internet, the said article had remained online and easily accessible for eight months. In that regard, the applicable domestic law read in the light of international legal instruments supported the idea that the relevance of the applicant’s right to disseminate information decreased over the passage of time, compared to the plaintiff’s right to respect for his reputation.
(b) The sensitiveness of the data at issue: the subject matter of the article in question had related to criminal proceedings instituted against one of the plaintiffs. The circumstances in which information concerning sensitive data was published constituted a factor to be taken into account when balancing the right to disseminate information and the right of a data subject to respect for his or her private life.
(c) The gravity of the sanction imposed: the applicant had been held liable under civil and not criminal law. The severity of the sentence and the amount of compensation awarded for non-pecuniary damage (EUR 5,000 per each plaintiff) must not be regarded as excessive, given the circumstances of this case.
In view of the above, the finding by the domestic jurisdictions that the applicant had breached the plaintiff’s right to respect for his reputation by virtue of the continued presence on the Internet of the impugned article and by his failure to de-index it had constituted a justifiable restriction of his freedom of expression, all the more so given the fact that no requirement had been imposed on the applicant to permanently remove the article from the Internet or to anonymise it.
Conclusion: no violation (unanimously).
(See also Hurbain v. Belgium, 57292/16, 22 June 2021, Legal summary (this case was referred to the Grand Chamber. It concerns a newspaper publisher required to anonymise, under the “right to be forgotten” of a driver who had caused a fatal accident, the online archived version of an article published twenty years previously); Axel Springer AG v. Germany [GC], 39954/08, 7 February 2012, Legal summary; Delfi AS v. Estonia [GC], 64569/09, 16 June 2015, Legal summary; M.L. and W.W. v. Germany, 60798/10 and 65599/10, 28 June 2018, Legal summary; 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)