Strasbourg court’s right to be forgotten decision will impact public interest reporting

In a worrying expansion of the application of the ‘right to be forgotten’ the European Court of Human Rights (the Court) has decided that a journalist may be held liable for failing or refusing to de-index information published on the Internet. In Biancardi v Italy the applicant, an editor of a newspaper, complained that he had been found liable in civil proceedings for having kept on the website of the newspaper a story about a fight in a restaurant and the criminal proceedings that followed. The concerned article had been published two years before the beginning of the proceedings. The Court found that because he had not de-indexed the article despite the owner’s request to do so, thereby allowing anyone who searched for the article through a search engine to have access to what the court considered sensitive information, the findings of the domestic courts that there had been a breach of privacy was correct. The Court took the view that de-indexing applies not only to search engine providers but also to administrators of online media archives and considered that “the continued presence on the Internet of the impugned article and by his failure to de-index it” were sufficient reasons for the sanctions imposed by the domestic courts.

Media Defence intervened in the case alongside a number of NGOs. The intervenors argued that the right to be forgotten was being applied in a way that represents a significant threat to press freedom. We also highlighted the impact the expansion of the right to be forgotten would have on the maintenance of the online media archive. In setting out a range of factors courts should have regard to when considering applications for the removal of information online we noted that while recent information is more likely to have immediate public interest value, certain other types of information should always remain accessible due to the public interest value in them, including information about serious crimes. In that context, the delisting of information on a search engine significantly impacts the ability of publishers to distribute information to a wide audience. Delisting may not only prevent readers from finding information, but may actually mislead people into believing that information does not exist.

Padraig Hughes, Media Defence Legal Director noted, “This is a significant expansion of the ‘right to be forgotten’, and one that represents a threat to the free flow of information. Removing perfectly lawful information on matters of public interest from the public domain prevents the media from exercising its core function, as a ‘public watchdog’”.

Click here to find our intervention.

Click here to find the Court’s decision.

We intervened with ARTICLE 19, the Committee to Protect Journalists, Index on Censorship, the International Press Institute, Mass Media Defence Centre, PEN International and Reporters Without Borders.