The balancing of freedom of expression and ‘the right to be forgotten’
on the Internet in the jurisprudence of European courts
Dorota Głowacka
18 May 2014
Introduction
Traditional legal tools that are used with regard to offline content to protect individuals’
reputation are often useless with respect to publications available online. Articles, photos,
videos posted on the Internet can be associated with a particular risk for the protection of
private lives of individuals. Unlawful content uncontrollably circulate around the Web, being
copied, republished and indexed by search engines. The removal of information from a single
source does not guarantee that it will not appear elsewhere. The effective control over the
unwanted content available online is the principal driver behind the idea of the so called “right
to be forgotten” in the digital age.
Just like information contained in the historical archives, data stored on the Internet are not a
neutral phenomenon - they reflect how the history will be remembered1. In human rights
terms the right to be forgotten is a complex concept that may be approached from different
angles. On the one hand, Internet publications fall within the right to the freedom of
expression2 and the European states have the positive obligation to create an appropriate
regulatory framework to ensure their effective protection3. Internet undoubtedly plays an
important role in enhancing the public’s access to news and facilitates the dissemination of
information. From this perspective the right to be forgotten may be sometimes regarded as
“censorship” or an attempt of “rewriting history”4.
On the other hand, the right to be forgotten can be located within the scope of the right to
privacy which is also protected under human rights regulations5, including the sphere of
horizontal relations between individuals6. The unrestricted availability of information about
the person’s past, may undermine their right to private life, even if the information is true.
Viktor Mayer-Schönberger, while explaining “benefits” of the “virtue of forgetting”,
underlined that “by erasing external memories our society accepts that human beings evolve
over time, that we have the capacity to learn from past experiences and adjust our behavior” 7.
1
D. McGoldrick, “Developments in the Right to be Forgotten”, Human Rights Law Review, 13 (4)/2013.
Art. 10 of the ECHR. See fo example the ECtHR judgment Times Newspapers v. UK from 10 March 2009
(applications no. 3002/03, 23676/03).
3
The ECtHR judgment Editorial Board of Pravoye Delo and Shtekel v. Ukraine from 5 May 2011 (no.
33014/05).
4
The ECtHR judgment Węgrzynowski and Smolczewski v. Poland from 16 July 2013 (application no.
33846/07).
5
Art. 8 of the ECHR.
6
The ECtHR judgment from 2 December 2008 (application no. 2872/02).
7
V. Mayer-Schönberger, “The Virtue of Forgetting in the Digital Age”, Princeton University Press 2009.
2
1
In that sense the infinite online memory may therefore impair individual’s autonomous ability
to personal development. Jeffrey Rosen adds that “the fact that the Internet never seems to
forget is threatening (…) our ability to control our identities, to preserve the option of
reinventing ourselves and starting anew.(…) [P]ermanent memory bank of the Web
increasingly means there are no second chances (…). Now the worst thing you’ve done is
often the first thing everyone knows about you.”8.
The classic example of that is an information on a person’s criminal convictions after they
have served their sentence. One of the most notorious cases in this respect was the legal
dispute between the two bothers convicted for murdering German actor Walter Sedlmayr and
the Wikimedia Foundation, the owner of Wikipedia. Once the perpetrators had been released
from custody, one of the brothers demanded erasure of their personal data from the
Wikipedia’s article concerning Sedlmayr which inter alia explained the circumstances of the
actor’s death. Putting aside the merits of this case, the outcome is that eventually both names
are now available on Wikipedia as a part of Sedlmayr’s biography in all 8 language versions9.
Moreover, because the case received a lot of publicity, the brothers have now their own
Wikipedia’s profiles, composed solely of 2 facts: the crime they committed and the legal
action they took in order to delete their names from Wikipedia10. This is all we can learn
online about their lives.
All around the world, scholars, judges, politicians and citizens are searching for responses to
the challenge of preserving both the right to privacy and freedom of expression in a digital
world that never forgets, looking for legislative and technological solutions as well as new
ethical and social norms. This paper intends to contribute to this debate by presenting selected
judicial decisions of precedential character in which European courts (both at the domestic
level, the ECtHR and CJEU) attempted to resolve this dilemma and deliver balanced verdicts.
Different courts across Europe decided to apply various measures aiming to help individuals
reconstructing the control over their personal data online, escape the burdensome past or
unfair “labels”, but without “censoring history”. The paper will try to identify current trends
in the European jurisprudence with respect to blocking online content violating privacy. It
will focus mainly on two issues: 1) the obligations imposed on the search engines’ operators
with regard to their search results indexes and 2) the protection of Internet archives.
Primarily this paper was intended to focus on ‘traditional’ tools of protecting reputation that
in most countries are available under the civil law regimes and analyze their practical
application with regard to the Internet. Due to developments proposed lately to be introduced
under the UE law11 and especially the very recent decision of the CJEU12, the paper will also
8
J. Rosen, “The Web Means the End of Forgetting”, Ney York Times, 21 July 2010,
http://www.nytimes.com/2010/07/25/magazine/25privacy-t2.html?pagewanted=all&_r=0, accessed: 17 April
2014.
9
See for example: http://en.wikipedia.org/wiki/Walter_Sedlmayr, accessed: 27 April 2014.
10
http://en.wikipedia.org/wiki/Wolfgang_Werl%C3%A9_and_Manfred_Lauber, accessed: 27 April 2014.
11
Proposal for a Regulation of the European Parliament and of the Coucil on the protection of individuals with
regard to the processing of personal data and on the free movement of such data (General Data Protection
Regulation) from 25 January 2012, COM(2012) 11 final.
2
briefly address case-law related to the data protection framework which – as an alternative to
the civil law – is now increasingly used for the purpose of protecting reputation. In fact, in the
light of the CJEU’s so called “Google Spain and Google Inc. v. Spain” case which extended
the interpretation of the existing data protection provisions, they may be now perceived as
offering the most effective and far-reaching remedy for securing privacy in an online
environment.
The right to be forgotten in the Polish case-law
In September 2009 Mrs. H. called the police emergency number in Żary, Poland, notifying
about the fire of a haystack. During the interview, the women revealed her name and home
address. Due to Mrs. H.’s hearing problems (she is an elderly, ailing person), her
communication with the officer receiving notification was disturbed. A few months later it
turned out that the recording of the phone conversation, in its original version, thus containing
Mrs. H.’s personal data, was uploaded by an unspecified person on the Internet. Then the
recording spread on many websites and became very popular among Internet users. Mrs. H.
became the butt of jokes on the Internet and – in consequence - among neighbors and friends.
They ridiculed the language she used in her conversation with a police officer as well as her
health problems. Mrs. H. received even mocking letters and postcards sent by mail to her
home address from Internet users who had come across the recording online.
Mrs. H. brought a civil action against the police, claiming the violation of her right to privacy
caused by the leakage of the recorded conversation to the Internet (art. 23 and 24 of the Polish
Civil Code). She demanded an apology in the local press, compensation and – interestingly –
the “erasure of the recording from the Web”. The court of the first instance13 confirmed that
the police failed to take sufficient oversight of the recording and it did not secured it properly
against unauthorized access and publicity. The court ordered the defendant to apologize Mrs.
H. However the demands for compensation and removal of recording from the Internet were
rejected by the court which argued that the portals on which the material was available did not
belong to the defendant and therefore police had no legal or actual capacity to remove it.
Mrs. H. appealed and the court of the second instance14 changed the verdict in favor of the
plaintiff. Finally not only did the court order the police to publish an apology in the local
press and compelled it to pay the compensation of 40.000 zlotys (10. 000 euros), but also it
obliged the defendant to “take reasonable steps in order to remove the recording [ ... ] from
the Web portals on which it had been placed, in particular, by sending an appropriate requests
to the owners of those websites”. The court emphasized that “by leaving the recordings on the
Internet, the negative consequences of the violation of Mrs. H.’s right to privacy would affect
her indefinitely” and that her redress would be “illusory”.
12
The judgment of CJEU from 13 May 2014, Google Spain SL, Google Inc. v. Agencia Española de Protección
de Datos (AEPD), Mario Costeja González, case no. C- 131/12.
13
Judgment of the Regional Court in Zielona Gora from 19 December 2013 (case no. I C 58/12).
14
Judgment of the Court of Appeal in Poznan from 22 May 2013 (case no. I ACa 313/13).
3
The above case is one of the most interesting judicial decisions in the recent Polish
jurisprudence in which national courts had to challenge the question of protection of
reputation online with regard to the content that illegally leaked to the Internet and spread
massively15. The precedential character of this judgment is that the police was obliged to take
action to delete the recording not just from a single source but to remove it from the “whole
Internet”, including websites which did not fall within the direct control of the defendant. As a
side note it should be added that such measure corresponds with the provision prescribed in
the art. 17 (2) of the UE Data Protection Regulation proposal16 which provides for the
obligation of the “controller which has made the personal data public, to inform third parties
on the data subject’s request to erase any links to, or copy or replication of, that personal
data”.
Nevertheless the obligation to erase content from third-party websites may raise certain
concerns as to what extent it is enforceable and how exactly it should be executed in practice
in order to be fully effective. The court suggested that the defendant should in a first place
contact owners of the websites hosting the recoding. It did not refer though to possible
practical obstacles resulting in particular from large expansion of the recoding online or
probable jurisdictional problems (some copies of the recording were uploaded on the portals
falling outside the jurisdiction of Polish enforcement agencies). Moreover the court did not
specify precisely whether the actions of the police should be limited to materials posted on the
Internet at the time of delivery of the judgment, or they should also include the obligation to
monitor the Web in the future and verify whether the recording has not been published
repetitively - in the same or another place.
Such obligation however would be very burdensome, costly and in a long run ineffective.
This was proven by similar cases examined in the past in which one of the parties hopelessly
attempted to suppress the uncontrolled dissemination of private information online using this
method. For this reason victims of privacy breaches stared seeking for new and more efficient
remedies before European courts. One of such cases will be analyzed in the next section of
this article.
Forgotten by search engines
Max Mosley, a British citizen and a former head of Formula 1, for over 5 years has been
trying to remove from the Internet photos and videos showing him in an intimate, sexual
situation. Initially, the materials were disclosed on the website of the British weekly “News of
the World”17. The lawsuit against the newspaper led to remove them from the original source,
but soon it appeared on other websites. Mr. Mosley eventually realized that he would have to
constantly monitor the Web and send hundreds of notices to administrators of websites,
15
See the Helsinki Foundation’s for Human Rights amicus curiae brief submitted in this case, 10 May 2013,
http://www.hfhrpol.waw.pl/precedens/aktualnosci/naruszenie-dobr-osobistych-w-internecie-opinia-hfpc.html
16
Proposal for a Regulation of the European Parliament and of the Coucil on the protection of individuals with
regard to the processing of personal data… op. cit.
17
See also the ECtHR judgment Mosley v. UK from 10 May 2011 (application no. 48009/08).
4
seeking to block the troublesome content. Instead he decided to direct a legal action against
the most popular search engine operator - Google, through which most Internet users in
practice reach the embarrassing files. In France and Germany Mr. Mosley called for a court
order for Google to create an automatic algorithmic filter thanks to which the links to the
compromising photographs and films would not appear in search results while “googling” his
name. Both French and German first instance courts recently ruled in favor of the plaintiff18.
These rulings free Mr. Mosley to some extent from the burden of watching the Web for the
unlawful content but at the same time they are quite challenging for Google.
What could be the implications of these French and German judgments for Mrs. H.’s case?
The police efforts seeking to minimize the impact of Mrs. H.’s privacy breaches so far have
not been very fruitful. The recording of Mrs. H.’s conversation with the police officer is still
easily available in many online sources, despite undertaking certain actions by the police19.
Perhaps the police, instead of sending notices to individual websites’ owners, should ask
Google to create a special filter for Mrs. H.’s recording? Alternatively, Mrs. H., learning from
Mr. Mosley’s experience, could now consider another lawsuit against Google. But is that a
right solution to handle the problem of effective protection of reputation on the Internet?
On the one hand, erasing references to certain online content from Google search results may
seem an efficient solution for recovering reputation especially in cases where the unwanted
information expanded significantly on the Web. This is due to the dominant position of
Google in global Web searching. In 2013 the Google’s search engines’ market share ranged
from 71,04% to 84,18% in the world scale20. In Poland in 2013 Google had 97% of the search
engines’ market21. Therefore for most Internet users the absence of information in Google
search results in practice means that it will be difficult for them to reach it. Some authors are
concerned that due to Google’s supremacy in this respect, Internet cannot be perceived as
hard-to-control, decentralized instrument anymore because in fact it is one company that
controls the metaphorical “master switch” which determines the access to information
online22. That is why the obligation to apply special filters disabling access to certain widespread unlawful information, is sometimes presented as a price that Google has to pay for its
own dominance.
On the other hand, the use of automatic filters raises very strong concerns with regard to
possible disproportional interference with the freedom of expression23 causing the risk of
18
Judgment of the Tribunal De Grand Instance De Paris from 6 November 2013 (case no. 11/07970) and
judgment of the Landgericht Hamburg from 24 January 2014 (case no. Az. 324 O 264/11). These judgments are
not final.
19
As explained by the Police in their letter from 2 May 2014 (WKS 458/14) to the Helsinki Foundation for
Human Rights in response to its request for public information, the police sent 15 notices to various websites’
operators asking to take down the recording. However the recording remains available on most of these websites.
20
http://marketshare.hitslink.com/search-engine-market-share.aspx?qprid=5, accessed: 28 April 2014.
21
http://returnonnow.com/internet-marketing-resources/2013-search-engine-market-share-by-country/, accessed:
18 April 2014.
22
See: T. Wu, “The Master Switch: The Rise and Fall of Information Empires”, A. Knopf, New York 2010 and
W. Orliński, „Internet. Czas się bać”, Agora, 2013.
23
See CJEU judgments in cases Sabam v. Scarlett (C-70/10) and Sabam v. Netlog (C-360/10).
5
overblocking, censoring legitimated speech, restricting access to information and stifling
innovation. Nilo Jääskinen, the Advocate General in his opinion24 submitted in the case
Google Spain and Google Inc. v. Spain before the CJEU invoked in the introduction to this
paper, drew attention to the important role of search engines in a modern information society.
He emphasized that the right to search for content using search engines is one of the most
important ways of exercising the freedom of expression. According to N. Jääskinen “an
Internet user’s right to information would be compromised if his search for information
concerning an individual did not generate search results providing a truthful reflection of the
relevant web pages but a ‘bowdlerised’ version thereof” (§ 131; Thomas Bowdler prepared an
“appropriate” version of W. Shakespeare’s works intended to be more adequate for 19th
century women and children25).
The dilemma presented above was recently finally challenged in long-awaited judgment in
Google Spain and Google Inc. v. Spain case26. The case concerns the question of removal
from Google’s search results references to information available in the internet archives of
one of the Spanish newspapers. The information regarded outdated financial liabilities of Mr.
Gonzales and information about insolvency proceedings against him which was published at
the request of Spanish authorities both in the paper and online edition of the newspaper in
1998. The newspaper refused to remove the information from its website even though Mr.
Gonzales claimed the debt was not valid anymore and the information was no longer relevant.
The individual then redirected his request for erasure to Google asking it not to show links to
the newspaper in its search results when his name was entered as a search term in the search
engine. The individual also addressed a complaint to the Spanish Data Protection Authority.
The DPA rejected the complaint against the newspaper on the grounds that the publication of
such data in the press was legally justified. However, the DPA upheld the complaint against
Google, requesting that the contested search results be removed from its index of search
results. Google sought the annulment of this decision before the Audencia Nacional which
stayed the proceedings in order to refer a number of prejudicial questions to the CJEU.
After the above-mentioned Advocate’s Gerenal opinion was delivered in this case, which
clearly prioritized the freedom of expression over the protection of privacy, many expected27
that the CJEU judgment would be the “last nail in the coffin” to the controversial right to be
forgotten concept provided for in the EU’s Proposed Data Protection Regulation28. However,
surprisingly the CJEU did not follow the N. Jääskinen’s approach. At the outset, the CJEU
made important findings about the role of search engine as “data controllers” who “collects
24
Advocate General’s Opinion in Case C-131/12 from 25 June 2013,
http://curia.europa.eu/juris/document/document.jsf?text=&docid=138782&pageIndex=0&doclang=EN&mode=r
eq&dir=&occ=first&part=1&cid=61947, accessed: 28 April 2014.
25
http://en.wikipedia.org/wiki/Thomas_Bowdler, accessed: 28 April 2014.
26
Op. cit.
27
“Rising like a Phoenix: The Right to be forgotten before the ECJ”, European Law blog, May 13 2014,
http://europeanlawblog.eu/?p=2351, accessed: 18 May 2014.
28
Article 17 of the Proposal for a Regulation of the European Parliament and of the Coucil on the protection of
individuals with regard to the processing of personal data and on the free movement of such data (General Data
Protection Regulation) from 25 January 2012, COM(2012) 11 final.
6
and process data” within the meaning of the Data Protection Directive29. Furthermore it
examined the territorial application of the Directive in the context of organizations such as
Google, acting in trans-border online environment. Especially the latter question is crucial for
the effective and complete protection of the fundamental rights as it confirms that a company
that conducts a web-search activity in a “global manner” – cannot fall solely within US
jurisdiction and can be challenged before European courts. The paper will not elaborate on
these aspects of the judgment though and will focus mainly on how the CJEU balanced
different values and conflicting interests in this case before ruling in favor of the “the right to
be forgotten” idea.
First, the CJEU emphasized that the privacy and data protection implications of processing by
a search operator are distinct from and additional to the implications of publishing on a
webpage. This is because of a search engine’s ability to aggregate information and to create
profiles of individuals on the basis of its search results. It is also because of wider
dissemination of the data and broader access to it. In consequence the CJEU made it clear
that the operator of a search engine is obliged to remove from the list of search results
displayed following a search made on the basis of a person’s name, links to web pages
published by third parties and containing information relating to that person, even when its
publication is otherwise lawful. When appraising requests for such erasure, it is not necessary
to find that the information in question causes prejudice to the data subject. An individual can
request that the information in question be removed notwithstanding the economic interest of
the operator of the search engine and the interest of the general public in having access to that
information unless it is justified for the information to remain available based on the
“preponderant interest”. The “preponderant interest” may concern for example an important
role played by the data subject in public life.
The CJEU’s ruling provoked a lively debate between right-to-privacy-supporters and
freedom-of-expression-advocates. The most interesting pros and cons of the CJEU’s decision
can be summarized as follows:
Pros
Cons
Judgment enables effective protection of
privacy in an online environment, taking into
to account Google’s crucial role in
dissemination of information and multiplying
the negative consequences of privacy
breaches.
In principle search engines should be free to
crawl and index information available on
Web in order to accurately reflect its
resources. Search engines should only
respond to users’ request to delete their
personal data from search indexes after the
original content on the website had been
deleted.
A
“public
interest
test”
in
certain The CJEU did not sufficiently consider the
29
Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of
individuals with regard to the processing of personal data and on the free movement of such data.
7
circumstances (“such as the role played by
the data subject in public life”) has been built
in the CJEU’s reasoning to ensure that facts
which ought to remain widely available as
they contribute to the legitimate public
debate will not be removed. The right to
delete links from the search indexes is not
absolute.
risks for the freedom of expression. The
original publishers may be deprived of an
important channel of communication and
Internet users in general may have access to
less information. CJEU did not even refer
explicitly to provisions of Article 11 of the
EU Charter of Fundamental Rights or Article
10 of the ECHR in its ruling. Moreover the
“public interest test” and freedom of
expression was mentioned as a limited
exclusion, rather than a right to be properly
balanced with the right to privacy.
CJEU did not require the search engine to
conduct a proactive monitoring of its indexes
in order to detect possibly illegal content. It
only required it to act upon a notice
concerning specific content.
The CJEU’s reasoning lacks proportionality.
Google can only remove the link entirely
from its search indexes, it cannot for example
anonymize certain bits on the website.
CJEU judgment confirmed that search
engines’ activity may have an important
impact on individuals’ fundamental rights
and that they should not be treated as neutral
intermediaries but should engage in
preserving the right to privacy online.
Search engines have limited capacity to
assess the legality of the information. It is the
publishers who should take care of the
accuracy of information in a first place. The
CJEU judgment may turn Google into a
private censor for whom it will be easier to
remove the content without any assessment
of the information whatsoever for fear of
being found in breach of its data protection
obligations.
What kind of far-reaching implications stem from this ruling? The CJEU’s decision obliges
Google, a company that shapes to great extent the current architecture of access to
information online, to modify its current mode of conduct in order to adjust it to the Court’s
findings. It also reflects the EU’s enthusiasm towards improving the European data protection
regime and extending it in particular to the protection of privacy on the Internet. It may serve
as a “green light” for the EU legislator to continue works on the data protection reform in the
direction set up in the European Commission’s Data Protection Regulation proposal30.
Furthermore the judgment confirms the CJEU’s position aimed at strengthening privacy
guarantees with regard to online communication which was highlighted a few weeks earlier in
the so called Digital Rights Ireland judgment 31. It supports also the previous decisions of the
domestic European courts such as French and German judgments in Max Mosley’s cases. In
fact the CJEU judgment broadens the protection of privacy in comparison to Mr. Mosley’s
judgments as it allows de-indexting irrespective of the unlawful nature of the content and
30
Proposal for a Regulation of the European Parliament and of the Coucil on the protection of individuals with
regard to the processing of personal data… op. cit.
31
The judgment of CJEU from 8 April 2014, case no. C-293/12 i C-594/12. It declared the so called Data
Retention Directive invalid.
8
prejudice experienced by the data subjects. On the other hand, the CJEU’s judgment
undoubtedly deepens the already existing gap between European and US perspectives towards
the scope of freedom of expression. Most likely the CJEU’s “radical” privacy-arguments will
not be embraced by the majority of American lawyers who tend to prioritize free speech and
will probably consider this decision a misuse to push forward censorship32.
At the same time it is not entirely obvious to what extent the CJEU’s findings are consistent
with the recent ECtHR developments in “the right to be forgotten”. Before trying to answer
that question, I will present some of the ECtHR’s case-law which sets out its own criteria
justifying the interference in the freedom of expression exercised on the Internet.
Forgotten by Internet archives
Apart from imposing obligations on search engines’ operators, another issue that has been
widely discussed lately in the European jurisprudence is a question of deleting content
violating privacy from Internet archives. The important guidelines in this respect were set up
in 2013 by the ECtHR in the case Węgrzynowski and Smolczewski v. Poland33. The next
section of this article will focus on this judgment as well as its implications for the domestic
courts and legal doctrine in Poland.
Two lawyers Szmon Węgrzynowski and Tadeusz Smolczewski in 2003 won the trial for the
protection of personal rights against the daily “Rzeczpospolita”. In the article journalists
suggested that the applicants benefited financially from obscure business contracts and
contacts with politicians, acting as liquidators of insolvent state-owned companies. The
domestic courts ordered the newspaper to publish an apology and to pay an amount of 30 000
zlotych (7,5 000 euros) to charity. The judgment was executed. In 2004, lawyers filed another
lawsuit in relation to the fact that the same article was still available in the online archive of
“Rzeczpospolita” without any notes or references to the prior judgment. The applicants
argued that this resulted in continuing violation of their rights, especially since the article was
easily accessible through search engines. The applicants demanded the removal of the article
from the archive, an again an apology and compensation. The domestic courts however
dismissed the claim, arguing that the publication in online archives has a historical dimension
(it was published online on the same date as the print version of the newspaper) and that harm
related to this publication suffered by S. Węgrzynowski and T . Smolczewski had already
been compensated.
The ECtHR accepted the national courts’ decision and unanimously found no violation of the
right to privacy (Art. 8 of the Convention). The ECtHR noted the Internet publications may be
associated with a particular risk for the protection of private life. At the same time it
emphasized that the Internet archives serve the public interest and are subject to the
guarantees arising from the protection of freedom of expression (art. 10 of the Convention).
32
P. Bernal, “The EU, the US and Right to be Forgotten” [in] S. Gutwirth, R. Leenes and P. De Hert (ed.),
“Reloading Data Protection. Multidisciplinary Insights and Contemporary Challenges”, 2013.
33
Op. cit.
9
According to the Court, documenting reality and sharing public information from the past is
one of the most important tasks of the press in the Internet era, beside the exercise of their
traditional “public watchdog” function (§ 59). The Court observed that Internet archives make
a substantial contribution to preserving and making available news and information and they
constitute important source for education and historical research (§ 59). Moreover the ECtHR
underlined that “it is not the role of judicial authorities to engage in rewriting history by
ordering the removal from the public domain of all traces of publications which have in past
been found, by judicial decisions, to amount to unjustified attack on individual reputations” (§
65). ECtHR acknowledged however, that “it would be desirable to add a comment to the
article on the website informing the public of the outcome of the civil proceedings in which
the courts had allowed the applicants’ claim for the protection of their personal rights” (§ 65).
That is because, according to the ECtHR, the “duty of the press to act in accordance with the
principles of responsible journalism by ensuring the accuracy of historical, rather than
perishable, information published is likely to be more stringent in the absence of any urgency
in publishing the material.” (Times Newspapers v. UK34, § 45).
The judgment in Węgrzynowski and Smolczewski case was interpreted as an important
development in the right to be forgotten by the representatives of legal doctrine35. It was also
mostly well-received by Polish scholars. The obligation of deleting the whole article from
online archives was compared to the practice known from ancient history (damnatio
memoriae) on the one hand, and autocratic and totalitarian regimes on the other. History
recalls many attempts to remove all traces of “inconvenient” information from people’s
memory, such as the attempts to erase the names of persons considered undignified (as in
cases of Akhenaten or Herostrates), or even manipulation of photographs by cutting the
“undesirables” out of the frame (as in the famous picture of Joseph Stalin, in which he
originally appeared with Nikolai Yezhov)36. Yezhow was retouched out of the photography
after felling from Stalin’s favor and being executed in 1940.
It is also interesting to see how the Węgrzynowski and Smolczewski judgment was
implemented in the Polish judicial practice. In most cases the Polish courts followed the
Strasbourg Court’s reasoning and rejected demands for erasing whole articles (or its excerpts)
from newspapers’ online archives as disproportional, even if the publication was previously
considered unlawful37.
At the same time though, several Polish courts decided that in case of particular types of
information it is justified to delete them from online archives. One of such cases concerned a
website of the TV program focused on informing about criminal affairs. In 1999 on the
34
Op. cit.
D. McGoldrick… op. cit.
36
B. Rodak, “Glosa do wyroku ETPC z dnia 16 lipca 2013 r.”, LEX /el. 2013.
37
See for example: judgment of the Appeal Court in Warsaw from 10 July 2014 (case no. VI ACa 19/13),
judgment of the District Court in Wroclaw from 20 August 2013 (case no. I C 277/12). Such approach
dominated in the Polish jurisprudence also before the ECtHR judgment in Węgrzynowski and Smolczewski case
– see the judgment of the Supreme Court from 28 September 2011 (case no. I CSK 743/10), judgment of the
Court of Appeal in Warsaw from 12 December 2012 (case no VI ACa 259/12).
35
10
request of the police the website published the photography and full name of Mr. O., accused
at the time (and later sentenced) for a fraud. The information was disclosed on the website in
order to search for more victims that might have been interested in joining the proceedings
against Mr. O. In 2012, a year after Mr. O served his sentence, he demanded to take down the
information from the TV program’s website, where it was still available, claiming that its
publication was no longer necessary. Despite the fact that the information was expeditiously
blocked following the receipt of the notice, Mr. O. started a legal action against the publisher.
He argued that the publisher should have deleted the information on his own initiative once
Mr. O’s conviction became final in 2005 and criminal proceedings against him ended. The
Court of Appeal in Łódź38 did not agree with the plaintiff and dismissed his lawsuit.
According to the court:
“under the Polish law there is no requirement for the defendant to regularly monitor archive of its website and
analyze all the data in terms of whether particular cases have already found their ending, and whether it is
appropriate to keep them available on the website. (...) The imposition of the obligation to audit any matter
placed previously on the website and checking it current relevance would be impractical and in fact impossible.
(...). Undoubtedly, the defendant has the right to act in trust for law enforcement agencies, reasonably assuming
that if police previously authorized the publication of the perpetrator’s image and data, once the publication
ceases to be justified, the police shall inform the defendant.”.
In conclusion, the court observed that Mr. O.’s demand for blocking the content in question
was justified but it was the police’s duty to notify the publisher that the information was no
longer valid. Media did not have the obligation to verify its validity.
In another case Mr. M., who in the past was convicted for a crime, after being released from
custody, sued the police for not deleting his arrest warrant still available on the police’s
website. The Court of Appeal in Gdańsk39 hold the police liable for the infringement of the
plaintiff’s privacy, arguing that the publication might have created a fake impression that M.
was still wanted by the police which continued to affect his present social and professional
life. The court underlined that it was no longer necessary to keep the publication of the arrest
warrant online in the context of the purposes for which it had been published in 1999.
Moreover the court observed that:
“Internet varies greatly from paper media (...) [F]inding archival material [in newspapers] requires the
acquisition and manual search of previous issues, while at the website all materials are available in one place.
Importantly, the particular publication can be accessed not only through the website (...), but also through web
search, therefore it may be difficult for readers to notice that the material had solely an archival value. (...) It
cannot be generally assumed that the specific information available online remains valid only on the day of its
publication”.
By this judgment, the court emphasized that the negative impact of certain information is
multiplied when it can be found on the Internet and therefore online archives should not be
treated in exactly the same manner as their analog equivalents in traditional libraries.
38
39
The judgment of the Court of Appeal in Łódź from 28 August 2013, case no. I ACa 350/13.
The judgment of the Court of Appeal in Gdańsk from 12 May 2012, case no. I ACa 626/12.
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Conclusions. Creative lawyering and judicial dialogue
By presenting the above cases examined by different kinds of courts in various countries, I
tried to identify trends of the European jurisprudence in area of the right to be forgotten and
describe recent judicial developments in this respect. The current case-law suggests that the
right to be forgotten does not always equal the right to erase history, and the courts which rule
on privacy cases do not have to be seen as ultimate guardians of truth. There have been
instances when the courts managed to find moderate and proportional solutions, reconciling
various interests. For example, most courts agreed the an interference in the journalistic
archives which would amount to the erasure of certain kind of content is not justifiable.
However the courts found a more balanced remedy. It is thus sufficient to add a comment or
explanatory note to the original article on the website informing the public about the
disputable character of the content. Thanks to this, the reader gets the possibility to learn
about the whole context of the article. What is more, the proposed solution is testament to the
courts’ attachment to the accuracy and comprehensive nature of online archives. Such
comments and explanatory notes should therefore become common practice. One may also
note that such a measure may serve as a disciplining mechanism towards journalists and
publishers. The need to append archived articles available online with comments or
rectifications may and should encourage media representatives to produce verified content of
the highest quality. This is also consistent with the argument that the accuracy of historical
publications may be more stringent than those of current news40.
In some instances though, individuals should be able to request the deletion of information
available online that was lawfully published in order to serve a very specific aim which is no
longer relevant. This applies for example to publications related to the person’s criminal past,
such as arrest warrants that were originally published for the sole purpose of the offender’s
apprehension.
It is also possible that the secondary liability of search engines’ operators may lead to duties
amounting to blocking references to specific websites. The question which I find the most
problematic with respect to search engines though is the obligation to create automatic filters.
In principle, as underlined inter alia in the recommendation of the Council of Europe, search
engines should be free to crawl and index information available on Web as any filtering or
blocking of information entails the risk of violation of freedom of expression41. This general
rule is not absolute though and may be subject to exceptions42. Filtering may be useful once
the unlawful content has already spread on numerous websites in an uncontrolled way and it
is difficult to remove it from original sources. However, if we examine a different type of
content, namely a lawful information that is not widely distributed or is limited only to one
40
D. McGoldrick… op. cit.
Council of Europe, Recommendation CM/Rec (2012) 3 of the Committee of Ministers to member States on
the protection of human rights with regard to search engines, 4 April 2012, § 12.
42
Ibidem. § 13.
41
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source – imposing the obligation to delete links to it by search engines as a primary measure
seems more complicated when it comes to assess the proportionality of such remedy.
In general I see a difference in perspectives adopted by the Council of Europe and ECtHR in
comparison with the recent CJEU’s approach. It is a question of defaults. While the ECtHR
opts for balancing operation between articles 8 and 10 of the ECHR, the CJEU considers the
protection of privacy a default which requires a very strong, pro-free speech argument to be
overridden. I believe that the CJEU decision to delete the references to the unwanted content
in the circumstances of the Google Spain and Google Inc. v. Spain case was right. It did not
concern journalistic article but an official statement, published for an explicit purpose that
was no longer valid but at the same time still unreasonably undermined Mr. Gonzales’
business credibility. Therefore it was justified to disable access to it. In more general terms
though, such remedy raises certain concerns due to the fact that according to the CJEU it can
be applied irrespective of the unlawful nature of the content or whether the data subject will
show any harm or prejudice as a result of the information being made available through
search results. In my opinion these factors should not be overlooked by courts while
conducting “proportionality tests” in other cases before imposing the “de-indexing” measure.
Overall, achieving a balance between privacy and censorship that is credible, sensible and
practicable requires creative lawyering43. The courts play a crucial role in this process at the
moment. They shape the current limits of the right to be forgotten, often by sophisticated
application of regulations that primarily were not tailored to the characteristics of online
communication. The complex nature of the protection of privacy online has to be approached
by courts in a flexible manner, depending on particular circumstances of the given case.
Different measures will be effective with regard to different types of content, different ways
of its dissemination and the level of availability on the Web. The European courts should
therefore establish an active judicial dialogue which may have important implications for the
process of “codification” of the right to be forgotten under the proposed UE data protection
reform.
43
D. McGoldrick… op. cit.
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